“To vindicate Massachusetts Justice, I crave the opportunity of your pages to address the lawyers of the Commonwealth,” he wrote the Transcript, and that paper obliged by giving his article the largest headlines since those announcing the 1918 armistice. Calling the Frankfurter article “neither fair nor accurate nor complete,” Wigmore protested that the “insinuation of a ‘picked’ jury was baseless and worthy only of unscrupulous yellow journalism.” He drummed on the fact that it was the defendants who had first brought up the subject of radicalism at the trial, asked why Frankfurter had not mentioned Sacco’s cap, accused him of saying nothing about the passport found on Sacco’s person the night of his arrest, proof in itself that the latter did not need to lie from fear of deportation. He asserted that if the Supreme Court had had any doubts of the defendants’ guilt it would have been “astute enough to lay hold of some point of pure law as a ground for ordering a new trial,” and pointed out that the defense at the time had taken no exception to Judge Thayer’s charge. Finally, he set off a series of rhetorical questions that streaked like red rockets across the Transcript’s staid pages:
Is Massachusetts subject to dictates of international terrorists? Where has the like ever been known in modern history? The thugs of India, the Camorra of Naples, the Black Hand of Sicily, the anarchists of czardom—when did their attempts to impose their will by violence ever equal in range of operations and vicious directness, the organized efficiency of this cabal to which Sacco and Vanzetti belong?
Frankfurter received a copy of the Transcript in the early afternoon and sat down at once to write his answer. Frank Buxton, the Herald’s editor, held up the presses so that his reply could appear in the next morning’s edition. In spite of the speed at which he had to write, Frankfurter had the advantages of a controlled temper and a deeper knowledge of the case. With mock mildness he began by suggesting that Wigmore could not have read the record or the opinions of Judge Thayer with care. He pointed out that the prosecution knew all about Sacco’s radicalism before the trial began—that the prosecution’s excuse for the cross-examination did not hold. In his Atlantic article he had challenged Judge Thayer’s statement that the Supreme Court had “approved” the verdict. Wigmore having denied that Thayer had used the word, Frankfurter now pointed to the passage where it occurred in the decision on the Madeiros motion. He also showed that Wigmore had accepted as genuine an erroneous passage about Sacco’s passport. He admitted not having mentioned Sacco’s cap in his article, adding that he had dealt with it in his book.
Two weeks later Wigmore came charging back with another piece for the Transcript in which he accused his opponent—this time referred to as the “contra-canonical critic”—of violating Canon 20 of the American Bar Association’s Code of Professional Ethics, which condemns “newspaper publication by a lawyer as to pending or anticipated legislation,” and of being behind-the-scenes counsel for Sacco and Vanzetti. He had also determined that while Judge Thayer used the word approved once, he had on eight other occasions used affirmed or some similar neutral word. Insisting that the real issue was whether the trial had been unfair—“a riot of political passion” through the misconduct of the district attorney and the judge—Wigmore held that it had not been. “If the Bar of Massachusetts should take this body-blow lying down,” he concluded, “they would deserve to suffer their profession polluted and their bench bolshevized by agitators financed and led as this case has been.”
In writing to William Howard Taft some months after the executions, President Lowell of Harvard commented that “Wigmore’s ridiculous article looked as if there was nothing serious to be said on the side of the courts.”
Frankfurter was not to be drawn out by Wigmore’s name-calling. His second reply in the Herald was as detached and temperate as before. He observed that Wigmore had answered nothing at all about Judge Thayer’s mistaken interpolation about Sacco’s passport. And it was still a fact, however Wigmore might feel about it, that Thayer had used the word approved. Frankfurter denied that the Massachusetts Supreme Court had the power the Northwestern dean attributed to it, and he concluded with the statement that “in no sense in which lawyers responsibly use the term have I ever been of counsel for Sacco and Vanzetti.”
Through May Governor Fuller continued his investigation to the exclusion of all other state business, sometimes spending twelve to fourteen hours a day interviewing witnesses and reading documents. Since the imposition of the death sentences he had received over 17,000 protesting letters and telegrams. Whatever he decided, he knew there would be an uproar. It was too much for one man.
On June 1, when rumor had all but settled the matter the other way, Secretary MacDonald announced that the governor had named a three-man advisory committee to go over all the aspects of the Sacco-Vanzetti case. The three were President Lowell; Robert Grant, a retired probate judge; and President Samuel Stratton of the Massachusetts Institute of Technology.
Several weeks before this appointment Lowell—possibly at the suggestion of his cousin, Bishop Lawrence—had written Fuller to the effect that men with no sympathy for anarchists were troubled by the charges that the Sacco-Vanzetti trial had been unfair and the verdict unwarranted by the evidence. But even if the president of Harvard had not so written, he would have seemed to the governor the logical first choice for any such committee. Lowell incarnated to Fuller what he most admired: status, family, academic learning, inherited assurance—the things his Packard money could not buy.