Unlike other war resisters brought to trial during World War I for conspiracy to obstruct the draft, Floyd Dell (1887–1969) was his own best chronicler; the present excerpt from his 1933 autobiography Homecoming shows him at his best as a writer, the account being full of texture and Dell having a precise, ironic, and ungrandiose sense of himself. No doubt he was like that in the courtroom as well, so it is no surprise that the charges against him and his codefendants were dropped after two successive trials resulted in hung juries.
Dell himself came from poverty and Illinois, became a journalist and man of letters in Chicago, moved to New York and helped edit The Masses, championed modernist literature though rejecting the experimentalists, worked with the Provincetown Players, wrote prolifically, and was a great success for a while. Later, as writers moved toward Marxism and the avant-garde, his successes were fewer. Appropriately enough, he found a job in 1935 writing for the Works Progress Administration; of the work he did for the WPA he later wrote, “I am still as proud of my governmental reports as of anything I have ever written.”
AT ten-thirty in the morning of April fifteenth, five of us—Max Eastman, Merrill Rogers, who was the business manager of the Masses, Art Young, Josephine Bell, a girl poet, and I—filed into one of the courtrooms on the third floor of the old Postoffice Building, which was used as a Federal Court, and took our places about a large table in the front enclosure. Ahead was a table at which sat three smiling men from the district attorney’s office; up on the dais, behind a desk, sat a black-gowned judge, busy with some papers; to the right was a jury box with twelve empty chairs; and behind us, filling the room, was a venire of a hundred and fifty men, from whom a jury was presently to be selected, to try us on the charge of “conspiring to promote insubordination and mutiny in the military and naval forces of the United States, and to obstruct recruiting and enlistment to the injury of the service.”
We rose to answer to our names, sat down, and the trial had begun. Our liberties to the extent of twenty years apiece, and our hypothetical fortunes to the extent of ten thousand dollars apiece, were now at stake. On the bench was Judge Augustus N. Hand, a rather slender and slightly grizzled man of reassuringly judicious and patient demeanor. In charge of the prosecution was Assistant District Attorney Earl B. Barnes, a thin and angular man with a perpetual sharp smile; it was apparent that he would send us to prison, if he could, in the most good-humored way possible, as a matter of duty, and with no personal grudge. He was assisted by two affable young men, Mr. Cobb and Mr. Rothwell. We were, after all, in New York City, where there were some elements of civilization left—not in the South, or in California. But ranged against us were the newspapers with their screaming headlines of Allied defeat, and the militant tunes of a Liberty Bond band in the park beneath the windows. On our side were certain constitutional rights of the press—which were being deliberately violated every day by the government. Our attorneys were Morris Hillquit, recently Socialist candidate for mayor of New York City, and Dudley Field Malone, who had resigned his position as Collector of the Port of New York as a protest against President Wilson’s refusal to fulfill the Democratic party’s pledge to give the vote to women.
The jury box filled up, and after questioning by defense and prosecution one man after another was excused. In the panel were real-estate agents, retired capitalists, bankers, managers, foremen and salesmen—never a wage-worker. It was composed almost entirely of old men. The prospective jurors frankly admitted extreme prejudice against Socialists, pacifists and conscientious objectors, though it was usually ready to assent cheerfully to the prosecuting attorney’s suggestion that these prejudices were not such as would stand in the way of an impartial consideration of the evidence.
It is hard to tell what a man is like from a few brief answers to a few questions. It was a species of lightning guess-work to decide what kind of mind and heart and conscience a prospective juror had—what malevolent prejudices, what weak susceptibilities to popular emotions, what impenetrable stupidities might lurk behind those unrevealing, brief replies. “Are you prejudiced?” “Yes.” “Can you set aside that prejudice?” “Yes.” These might be the replies of a fool or a coward or a liar; or they might be the replies of an honest man, open to conviction of the truth, and steadfast as a rock in maintaining that truth against all opposition. We had to gamble on our impressions of character, and choose irrevocably.
The jury was finally selected in the course of two days. The judge quashed one count of the indictment, leaving us now charged only with conspiracy to obstruct recruiting or enlisting; but we could still be given twenty years in prison for that. And the girl-poet, Josephine Bell, was let go.
The case thereupon went to the jury, and somewhat to our surprise a great deal of time was taken up in establishing beyond the peradventure of a doubt, by the testimony of office boys and printers, that such a magazine as ours really existed. Then, much more interesting, there was presented to the jury the evidence against us, in the form of editorials, jokes, pictures, and poems which we had printed. It took a long time to read everything we had written—a whole day. I felt a certain pride as an author in having my own writings, among others, thus treated as matters of social and political importance; and I reflected that even if during the rest of my literary career my work should receive no other public testimonial, I should never complain that it had been permitted to languish neglected. There are different ways in which the State may encourage its young writers; if this present ceremonial was open to criticism from some points of view, yet it could not be said that it was lacking in impressiveness. And if this were not exactly a wreath of laurel that had been handed me, yet I wore it as proudly.
Among my writings, one particular paragraph had been cited in the indictment as an “overt act” in violation of the Espionage law. This passage, constituting an introduction to a brief account of the tortures inflicted on British conscientious objectors, was read to the jury: “There are some laws that the individual feels he cannot obey, and he will suffer any punishment, even that of death, rather than recognize them as having authority over him. This fundamental stubbornness of the free soul, against which all the powers of the State are helpless, constitutes a conscientious objection, whatever its sources may be in political or social opinion.”
So it was, I reflected, a tribute to courage which had brought me into court! I had not ceased, at the proper moment, to admire a certain “stubbornness of the free soul.” Or, admiring it if I must, I had not duly reflected that the time was inopportune for utterance of the disturbing truth that against such heroic stubbornness all the powers of the State are helpless! A fault of taste, perhaps; but I had observed that all times are inopportune for the utterance of truth. Truth is always in bad taste. . . . Meanwhile, our legal defenders addressed the jury, pointing out that these “overt acts” constituted simply a lawful exercise of the constitutional right of free expression of opinion.
In turn, then, we the defendants took the stand and explained our views. And I felt that the jurors, who looked and listened so intently hour after hour while we were testifying, were having a spiritual adventure as gratifying as it was doubtless unique in their experience. Busy men all their lives, too tired perhaps at the end of the day’s getting and spending ever to explore for themselves the realms of economic and social thought, they were now given by an odd chance an opportunity to view some fascinating landscapes of thought. And though they might in the end, reminded of their duty by a tune outside the window, decide that we were dangerous men and send us off to prison, still this would be a thing to remember. . . .
I did not fail to recognize why it was that we were thus permitted to entertain the jury with reasoned and eloquent discourse. I had observed in certain other war-time trials that the defendants were not treated with such courteous consideration. No, for in these war-time trials the defendants were often both poor and of foreign origin—and as such not entitled by American custom to the civilities which we reserve for our peers. These “foreigners” were here to do our dirty work and take our orders, with no right to criticize. But we, as it appeared, were American-born and bred, obviously well-educated, belonging by prescriptive right among those who give rather than among those who take orders; and if we were found on the “wrong” side of such a controversy, along with discontented foreign-born workers, it would naturally be inquired how the devil we came to be there, and our reply would meet with a respectful, if puzzled, hearing. In our case, the mention of constitutional rights could not be met with the judicial sneer which is accorded to those who mention such rights with a foreign accent; it was “our” constitution, and we had a right to talk about it. We did not wave our hands when we started to explain ourselves, nor were we shabby; and so we were not interrupted by an impatient judge.
Art Young had been busy all through the trial drawing humorous pictures of the judge, the jury, the witnesses, the court attendants. But once he fell asleep. “For heaven’s sake, wake him up and give him a pencil,” whispered one of our attorneys. For there is an etiquette of the court-room. It is discourteous to show weariness or boredom while being tried. One may not smoke, or read, or whisper much, or laugh at all. And this, to such as have not yet got used to it, is one of the serious hardships of being on trial.
I was told to take the stand, and I did so with pleasure. It was not only an agreeable break in the routine, but a chance to speak after an enforced silence that had lasted for days. Moreover, here was a perfect audience. The government does not do things by halves: it had provided a carefully selected group of men for me to talk to; others might tire and go away, but they had to sit there and listen to me. Under such circumstances, it was easy to explain what I thought about war, militarism, conscientious objectors, and other related subjects.
Also, I found in cross-examination the distinct excitement of a primitive sort of game of wits. The method of conducting a discussion in a court-room is faintly suggestive of a Socratic dialogue. And though your questioner stands twenty feet away, and you are speaking up so the jury can hear, you lose all sense of any presence save that of your interlocutor. You are surprised when, at some interruption from outside that magic circle of question and answer, you discover yourself in a court-room full of people. It is a strange, stimulating, and—or so I found it—an agreeable experience.
All this discussion of our various opinions on almost every conceivable political topic had extended the trial into its second week. On the ninth day, the attorneys for both sides summed up. The district attorney most surprisingly paid us all compliments in asking the jury to convict us. “These men,” he said, “are men of extraordinary intelligence.” And me in particular he characterized thus: “Dell, a trained journalist, a writer of exquisite English, keenly ironical, bitingly sarcastic.” Thank you, Mr. Barnes! “And so, gentlemen of the jury,” he concluded, “I confidently expect you to bring in a verdict of guilty against each and every one of the defendants.”
The jury, being duly charged, retired late that afternoon. And we awaited the verdict. We thought a good deal about those jurors as we walked up and down the corridors, smoking and talking with our friends, through the long hours that passed so slowly thereafter. A defendant cannot sit for days in the same room with twelve jurymen without getting to some extent acquainted with them, and feeling that they are for or against him. . . .
But that, after all, was mere guessing. How could we be sure that the man we thought most hostile might not turn out to be our best friend?—perhaps our only friend! And of those who were for us, how could we be certain that they had the courage to hold out? Some friend experienced in the ways of juries would take our arm and whisper: “Expect anything.” From behind the heavy door of the jury-room came sounds of excited argument. . . .
Art Young took me aside and asked me quietly: “Floyd, when you were a little boy did you ever read any books about the Nihilists?” “Yes,” I said. “And did you think that maybe some day you might have to go to prison for something you believed?” “Yes,” I said. “Then it’s all right,” said Art Young, “no matter what happens.” And I was glad to know that Art Young was spiritually ready to go to prison.
I realized that I had never been more serene and at ease in my whole life than during the nine days of this trial. I had been curiously happy. It might be unreasonable, but it was so. And one who is being psychoanalyzed is not surprised to find his emotions unreasonable.
While we waited, I began to ponder for myself the question which the jury had retired to decide. Were we innocent or guilty? We certainly hadn’t “conspired” to do anything. But what had we tried to do? Defiantly tell the truth. For what purpose? To keep some truth alive in a world full of lies. And what was the good of that? I didn’t know. But I was glad I had taken part in that act of defiant truth-telling.
The jury could be heard noisily arguing about us—or about something.
After dinner we returned, with a few friends, and bivouacked in the dim corridor, waiting. Late that night the judge was sent for, and we went eagerly into the court-room. The jury filed in. Had they brought in a verdict? No; they desired further instructions.
The judge then repeated a definition of “conspiracy” which no one but a lawyer would pretend to understand, and the jury went back. And already the inevitable rumors began to percolate. “Six to six.”
Six to six! The struggle of contending views of life had ceased in the court-room, and been taken up by the jury. Other protagonists and antagonists, whose exact identity was unknown to us, were fighting the thing out in that little room. The debate had not ended, it had merely changed its place and personnel. . . . And then we remembered that our fate was involved in that debate; and we felt a warm rush of emotion, of gratitude toward these unknown defenders who had made our cause their own.
Next morning the debate in the jury-room grew fiercer, noisier. At noon the jury came in, hot, weary, angry, limp, and exhausted. They had fought the case amongst themselves for eleven vehement hours. And they could not agree upon a verdict.
But the judge refused to discharge them; and they went back, after further instructions, with grim determination on their faces.
And again we wandered about the corridors—all day; and returned in the evening to camp outside the court-room. . . . Then, in the unlighted windows of the skyscraper opposite, we discovered a dim and ghostly reflection of the interior of the jury-room. Men were standing up and sitting down, four and five at a time. A vote? Someone raised his arm. Someone strode across the room. Someone took off his coat. I stood at our window and watched . . . and then went away. I had waited for twenty-nine hours. I could wonder no more. The whole thing seemed as dim and unreal as that ghostly reflection in the window. I thought about stars and flowers and ideas and my sweetheart. . . .
At eleven o’clock the jurors reported continued disagreement, but were sent back.
The next noon, hopelessly deadlocked, the jury was discharged, with all our thanks. And so we were free.