A Critical Study and Analysis of Clarence Darrow's Plea to the Jury in the Massie-Fortesque Case

A Paper Presented to Dr. Robert Wick, St. Cloud State College

In Partial Fulfillment of the Requirements for Speech 521

by Dwain L. Johnson, August, 1958



Clarence Darrow, who had retired four years earlier, spent his seventy-fifth birthday in Honolulu pleading the case of four defendants in what is known as the Massie case.

"Many times I have been asked why I went to Honolulu. I was not sure then, and am not sure now," the defense attorney wrote five years before he died.

But there were several reasons which might explain his undertaking the case, To Darrow, it was a study of psychology, and he was always interested in man's puzzling behavior. In addition, the 1929 depression had practically wiped out his savings and he admitted he needed the fee, which reportedly was $25,000.

Thalia Massie, wife of a United States Navy officer stationed on the Island, was raped by five men. The Massies had been to a party. Mrs. Massie left at midnight after a quarrel with her husband. She was walking toward her home when she was accosted. Four of the men-- none of whom were white-- were arrested and identified by Mrs. Massie as her assailants. They were brought to trial. The jury disagreed and they were released on bail.

While awaiting the retrial of the accused, the victim's husband, Lieutenant Thomas H. Massie, forced one of the Japanese assailants, who was out on bond, to confess. The Japanese, however, had photographs taken of the welts on his back from Massie's beating. When Massie told his lawyer of the confession, the lawyer advised that a confession obtained in this manner would never hold up in court.

Determined to get a confession, the lieutenant, with a false subpoena, kidnapped the leader of the assailants, Joseph Kahahawai. Lieutenant Massie was aided by his mother-in-law, Mrs. Fortescue, and two sailors.

Kahahawai was brought to Mrs. Fortescue's home. There he confessed to raping Mrs. Massie. Lieutenant Massie fatally shot him.

The island was seething with race dissension-- first, because of the assault on Mrs. Massie; then, the disagreement of the jury in the original trial of the assailants; and, finally, the murder of Kahahawai.

Darrow, however, had made it clear before he left the States that his defense would not be a question of race, but rather of "causes and motives."

The trial against Lieutenant Massie, Mrs. Fortescue, and the two sailors opened early in April, 1932, in the small courtroom of Circuit Judge Charles S. Davis.

The chief prosecutor was J.C. Kelley.

The defense: Clarence Darrow and George Leisure, a Wall street lawyer.

In the selection of the jury, each side had used three of its twenty-four challenges by the end of the first day. The prosecution challenged two whites and a Chinese; the defense used its challenges against two Hawaiians and one Japanese. By the end of the second day, eight challenges had been used by both sides.

Jury selection was completed four days after the trial opened. The jury was composed of one Hawaiian, three Chinese, one Portuguese, the rest native-born Americans.

During the trial, newspapermen commented that the mind of the veteran of the courts had lost none of its cunning. There may have been some doubts of this when, at one point, the attorney of many legal battles forgot the name of one of his defendants. He turned to the prosecutor and asked the name:

PROSECUTOR: Don't you know:
DARROW: Yes, but it popped my mind.
DARROW: Yes, Lord-- that's right.

And he turned back to the jury.

Many persons stood in line through the night to hear Darrow's plea the following morning. Places in line sold for five dollars, and in some instances for as much as twenty-five dollars.


Gentlemen: we are getting close to the end of this case. It has been a long, serious, tedious trial and you of the jury probably have had the worst of it.

This case illustrates the working of human destiny more than any other case I have handled. It illustrates the effect of sorrow and mishap on human minds and lives, and shows us how weak and powerless human beings are in the hands of relentless powers.

Eight months ago Mrs. Fortescue was in Washington, respected and known like any other woman.

Eight months ago Lieutenant Massie worked himself up to the rank of lieutenant in the navy, respected courageous and intelligent.

His young wife, handsome and attractive, was known and respected and admired by the community.

In that short space of time they are in a criminal court and the jury asked to send them to prison for life.

What has happened is a long series of events, beginning at a certain time, ending we don't know where.

A whole family-- their life, future, name-- bound up in a criminal act committed by someone else in which they had no part.

About eight months ago Massie and his wife went to a dance. They were young, happy. He was following the profession he had chosen, and she was the wife of a navy officer-- brave, courageous and fearless.

Today they are in this court, in the hands of you twelve men, to settle their fate. I ask you gentlemen to consider carefully, seriously. The power is given to you to do justice in this case.

We content that for months Massie's mind had been affected by all that was borne upon him: grief, sorrow, trouble, day after day, week after week, and month after month. What do you think would have happened to any of you under the same condition? We measure other people by ourselves. We place ourselves in their place and say, "How would we have acted?" We have no further way of telling, except perhaps from the conditions of the life in which we live.

As to the early history of this case-- they went to a dance with their friends. About half-past eleven in the evening, Mrs. Massie, who didn't especially care for these festivities, went out for a walk intending to go down the street and come back and join her husband again at the dance. It was only a few steps from safety to destruction.

What did Massie learn from her a few hours later? An unbelievable story-- almost-- at least an unthinkable one about which even my friend who opened this argument for the State said: "It was a terrible story"-- so terrible that he pitied them. Still, he asked you to send these people to prison.

She had gone but a short way when four or five men drove up behind her in an automobile, dragged her into it, beat her, and broke her jaw in two places. They were ruffians, unknown to her. And after that they dragged her into the bushes, and she was raped by four or five men.

Can you imagine anything worse that could have happened or any greater calamity that could have fallen upon that family? They had nothing to do with it-- not the slightest.

She was going her way as she had the right to go, and in the twinkling of an eye her whole life, the life of a family, was changed, and they are now here in this court for you to say whether they will go to prison-- for life!

Is there a more terrible story anywhere in literature? I don't know whether there is-- or who it was-- or where I can find that sad tale but right here. You and all the other people in the city have been chosen to take care of their fate. I hope you will in kindness and humanity and understanding-- no one else but you can do this.

She was left on that lonely road in pain and agony and suffering. In this Mrs. Massie suffered the greatest humiliation that a woman can suffer at the hands of men. She had done nothing! Massie had done nothing! So far, suffering has been inflicted on them. Suffering that few people encounter in their lives.

Massie dances until the dance is nearly over. He is ready to go home. He looks for his wife. She is not there. He goes to a friend's house. She is not there. He calls home, and she isn't there. He looks wherever he can and he calls home again and she sobs out part of the story over the telephone, part of the story as terrible, as cruel, as any story I've heard: "Hurry home, something terrible has happened to me!"

Tommy (Lieutenant Massie) rushes home! She meets him at the door and sobs and tells him this terrible story-- isn't that enough to unsettle any man's mind? Suppose you heard it!-- then and there-- what effect would it have on your mind-- what effect would it have had on anybody's mind!

Shock, grief, and sorrow, at times protracted, sometimes at once, causes a human mind to break down in the end. The was only the beginning-- here was his wife: she told him that they had broken her jaw, that she thought they had knocked out her teeth, that they had hit her on the jaw, that they had beaten her, taken her into the machine, dragged her into the bushes, ravished her and left her by the road to find her way home.

So you remember the subsequent story? The police were called to pick up the trail. No one raised even a doubt about this story, except the originators of a few vile slanders which were carried from tongue to tongue. Has anybody placed their finger upon a single fact to contradict the saddest tale that was ever brought to a husband?

What did Mrs. Massie do? All of this she told her husband. They had reason to believe and fear infection that she might be placed in a family way from these men who dragged her into the bushes and ravished her. She took the best precautions she could. She gave her information to the police and they jeered and hinted and quarreled and haggled about what should be done.

There have been people who spread around in this community stories I don't believe true. They concoct these terrible stories and what effect did they have on Massie? May I ask what effect they would have on you, and how would you have stood them? Massie attended to his day's duties as best he could. He went back and forth, nursing his wife, working all day and attending her at night for weeks. It was all that any husband could do, or any man could do. He lost sleep. He lost courage. He lost hope. He was distraught! And all this load was on his shoulders!

Any cause for it? Our insane institutions are filled with men and women who had less cause for insanity than he had. Everyone knows it. The mind isn't too easy to understand at best. But what happens to the human mind? It does one thing with one person and another thing with another. You know what it did to Massie's Do you think he is responsible, or has been, from that terrible night?

What did he do? Days he worked. At night he nursed his wife. Could anyone do more? The slow, long, terrible times. The doctor attending her helped Massie too. Gentlemen, just think how much is involved here now. Here was the assault, the rape, the pain, the days and the nights, and what else? Dr. Withington told them that they must take the greatest pain to guard against disease and pregnancy. So he watched her day by day. Day by day Tommy tended to his duties. He nursed his wife at night. Well, how would it affect you? Finally, the doctor said, "You must have an operation to prevent pregnancy."

Here is a man-- his wife-- she is bearing inside of her the germs of-- who? Does anybody know? Not he, but someone of the four ruffians who assaulted her and left a wreck of her. The doctor was not only a physician, but a friend. He asked no question. He didn't even read the statutes. He wasn't afraid the district attorney would indict him for abortion. You know what a friend would do, what an intelligent physician did do. So he took away what was there. He did it out of kindness and consideration-- and prescribed for Massie, too.

Now gentlemen, don't you suppose all this trouble might have been what ailed him? Would you take a chance on your own mind or any other person's, strong or weak?

It is almost inconceivable that so much could happen to one family. In time, four men were indicted for the crime. Tommy was away on duty some of the time. Part of the time he was in the courtroom during the trial of the assailants. A strange circumstance, indeed, that the jury disagreed in that case. I don't know; I don't see why. But anyway, after all their work, and all their worry, the jury disagreed. What effect did that have?

Many have no doubt raised the question that has been raised over and over since man organized courts-"Can't I get justice?" Is there a chance to get any? Months passed and this case still was not retried.

Then began a campaign such as has been waged against few men and women. Out of the clear air, with nothing on which to rest, strange, slanderous stories were spread over these Islands about Lieutenant Massie and his ravished wife. Stories that she had never been raped, or else that she ravished herself. Stories that her husband, whose faithfulness the doctor related to you, and it has been plainly evident to every person who sat in this courtroom during these long trying days, broke his wife's jaw. Then they spread the rumor that it was some Navy person who had ravished her. This spread all over the islands. Everybody heard it. It came to Tommy, it came to Mrs. Massie. And it came to her mother.

Gentlemen, I wonder what Fate has against this family anyhow? I wonder when it will get through taking its toll and leave them to go in peace, try and make their own life in comfort for the rest of their days.

Here is the mother. What about her? They wired to her and she came. Poems and rhymes have been written about mothers. I don't want to bring forth further eulogies which are more or less worthwhile, but I want to call your attention to something more primitive than that. Nature. It is not the case of the greatness of a mother. It is the case of what nature has done. I don't care whether it is a human mother, a mother of beasts or birds of the air, they are all alike.

To them there is one all-important thing and that is a child that they carried in their womb. Without that feeling which is so strong in all life, there would be no life preserved upon this earth. She acted as every mother acts. She felt as your mothers have felt, because the family is the preservation of life. What did she do? Immediately she started a long trip to her daughter. The daughter was married and a long way off, but she was still her daughter. I don't care if a mother is seventy-five and her daughter fifty, it is still the mother and the child.

Everything else is forgotten in the emotion that carries her back to the time when this was a little baby in her arms which she bore and loved. Your mother was that way and my mother, and there can be no other way, because life can be preserved in no other way. The mother started a trip of 5,000 miles, over land and sea, to her child. And here she is now in this courtroom waiting to go to the penitentiary.

Gentlemen, let me say this: If this husband and this mother and these faithful boys go to the penitentiary, it won't be the first time that a penitentiary has been sanctified by its inmates.

When people come to your beautiful Islands, one of the first places that they will wish to see is the prison where the mother and the husband are confined because they moved under emotion. If that does happen, that prison will be the most conspicuous building on this Island, and men will wonder how it happened and will marvel at the injustices and cruelty of men and will pity the inmates and blame Fate for the cruelty, persecution and sorrow that has followed this family.

Gentlemen, you are asked to send these people to the penitentiary. Do you suppose that if you had been caught in the hands of Fate-- would you have done differently? No, we are not made that way. Life doesn't come that way. It comes from a devotion of mothers, of husbands, loves of men and women, that's where life comes from. Without this love, this devotion, the world will be desolate and cold and will take its lonely course around the sun alone! Without a human heartbeat, there will be nothing except thin air. Every instinct that moves human beings, every feeling that is with you or any of your kin, every feeling that moves in the mother of the animal is with us in this case. You can't fight against it. If you do you are fighting against nature and life.

Gentlemen of the jury, this campaign against Massie and Mrs. Massie began very, very early. It was very strong when the jury disagreed. Stories have ben peddled all over this town that Massie and his wife were about to get a divorce. They said that another Navy officer was out that night with Mrs. Massie.

Stories have been peddled up and down the streets and broadcast against this womanwho had been raped, and the husband was doing all he could to help her as any husband would. What effect could it have on the mind of this defendant?

Gentlemen of the jury, it was bad enough that the wife was raped. These vile stories were circulated and cause great anxiety and agony. All this is bad enough. But now you are asked that they must spend the rest of their lives in prison. All right, gentlemen, you have the power, but let me say to you-- that if on top of all else that has been heaped upon the devoted heads of this family, if they should be sent to prison, it would place a blot upon the fair name of these Islands that all the Pacific seas would never wash away.

There is, somewhere deep in the feelings and instincts of a man, a yearning for justice, an idea of what is right and wrong, of what is fair between man and man, that came before the first law was written and will abide after the last one is dead. Picture Tommy's and his wife's minds, when he went up and down investigating these stories. He doubted his friends and he thought he heard people's footsteps on the lawn outside in the dead of night, and he went out to see and he was harassed and worried from the time this happened until now.

How much could you, how much could any mind stand? Some men have gone insane by a word, by fear, by fright, others by slow degree, by long trouble, by mishap.

Poor Massie, strong and vigorous, when all of those things were heaped upon him. What did he do? He began to rid his mind somewhat of his own troubles and of the persecution of the man who performed this deed. He began to think of vindicating his wife from this slander. She had been lied about, she had been abused with talk.

Massie was discouraged. Months of slander since his wife had been dragged into the bushes and raped; months of abuse. He had ideas and fears and delusions. The doctor tried to quiet his fears, but they could not be quieted. He couldn't work-- he was concerned with the girl, whom he had taken in marriage when she was sixteen-- sweet sixteen.

Mrs. Fortescue was worrying about the delay of what she thought was justice, and what other people thought was justice. I fairly well know what law is, but I don't often know what justice is-- it is a pattern according to our own personal conceptions.

Mrs. Fortescue, too, believed it necessary to get a confession. That last thing they wanted to do was to shoot or kill.

What did they do? They formed a plan to take Kahahawai to their house and get a confession. They never conceived it to be illegal-- it was the ends they thought of-- not the means. Are Jones and Lord, two common seamen, bad? There are some human virtues that are not common-- loyalty, devotion.

Jones had been out there to see that the slanderers didn't kill-- but slanderders don't kill that way. He was faithful as a dog, he was loyal when a shipmate asked for help. Was he bad? There are so many ways to measure goodness and badness.

There isn't a single thing that either of these two boys did that should bring censure.

I know the state's attorney would rather convict four people instead of two, but I think he would compromise on two-- that ought to be enough for one day.

If you needed a friend, would you take one of these gobs, or would you wait outside prayer meetings on Wednesday night-- I guess that's the right night? I say to you i would take one of these, rather than the others.

Tommy had prepared this warrant or subpoena, woven, like Joseph's coat, of many colors. Jones handed it to the Hawaian boy and said Major Ross wanted to see him.

They did not want to kill-- they made no plan to kill-- they don't know what to do when it happened. And the house was not a good place to kill-- one family thirty feet away, another house twenty-five feet away. A lovely place to kill someone, isn't it?

Tommy, I say Tommy because he will never be anything else to me. I have not known him long, but I have learned to love him and respect him. Tommy was driving the car when it came to the courthouse-- this man got in. Tommy for months had been subject to delusions and fears that bring insanity.

There is nothing in this evidence to indicate that they ever meant to kill-- there was never any talk of killing, as far as this evidence is concerned.

I would not want to do anything to add to the sorrow of the mother of the boy (Kahahawai), or the father of the boy, or the cousin, who sit here. They have human feelings, I have too. I want you to have human feelings too. Any man without human feeling is without life.

The party entered the house. Tommy had a .45 which is much surer death than a .32, and this unfortunate boy was killed by a .32.

It's of no consequence who fired the shot-- I am arguing the facts, and the only facts as you get them. Is there any reason in the world why Massie, on top of all these other troubles, should assume the added burden of assuming the responsibility of this killing?

I haven't always had the highest opinion of the average human being; man is none too great at best. He is moved by everything that reaches him, but I have no reason to think that there is anybody on this jury who will disregard the truth for some fantastic, imaginary theory. Tommy has told you the fact that there was no intention of killing.

When Kahahawai said, "Yes, I done it," everything was blotted out-- here was the man who ruined his wife.

No man can judge another unless he places himself in the position of the other before he pronounces the verdict.

If you can put yourself in his place, if you can think of his raped wife, of his months of suffering and mental anguish; if you can confront the unjust, cruel fate that unrolled before his, then you can judge-- but you cannot judge any man otherwise.

If you put yourself in Tommy Massie's place, what would you have done? I don't know about you, or you , or you, or you- but at least ten out of twelve men would have done just what poor Tommy did. The thing for which you are asked to send him to prison for the rest of his life.

I shan't detain you much longer. Again I say I cannot understand why the prosecution raises a doubt as to who fired the shot and how.

Massie was there! He rose! The picture came before him! He doubtless shot! One bullet was shot and only one.

Massie saw the picture of his wife pleading, injured, raped- and he shot. There could have been nobody else. And then what? Had any preparations been made to get out this body? What could they do? What would you have done with a dead man on your hands? You would want to protect yourselves. It might be the wrong thing to do- but it's only human.

What is the first instinct? Flight. To the mountains, to the sea, anywhere but where they were. Here was the dead body- they couldn't leave it- perhaps they could get rid of it. There isn't one in ten thousand who wouldn't get away, no matter how.

That isn't the plan of conduct of someone who had thought out a definite plan; it is the hasty, half-co-ordinated instinct of one surprised in a situation. And finally they were caught. The first few officers found that these people wouldn't speak. This is an hour after the shooting.

Gradually Lieutenant Massie was coming back to consciousness and realizing where he was. Where is the mystery in a man cracking after six or eight months of worry?

We are now realizing that many acts have been punished as crimes that are acts of insanity. Why? Because lawyers have been too cruel to look for insanity; because an act is considered as a crime, not as a consequence of causes.

He asked for a cigarette, a simple reaction, something you're used to, something to do. Does a man think every time he takes a cigarette? No. It doesn't mean a thing. I have been a cigarette smoker, and I could ask for a cigarette in my sleep.

Any man in any situation may do it. Neither does turning away from a camera indicate anything it may be just instinct, and mean nothing.

As time went on, he, or course, began to recover. Two hours later at the city attorney's office he had recovered enough to refuse to answer questions.

He had had delusions, had lost flesh, had been ill. It's a wonder he didn't go crazy the first night. Many men have gone insane for less, many have gone insane without others realizing it until later.

I believe I have covered this case as far as I care to go. There are little things here and there, but the broad facts are before you.

It was a hard, cruel, fateful episode in the lives of these poor people. Is it possible that anyone should think of heaping more sorrows on their devoted heads, to increase their burden and add to their wrongs?

If so, I cannot understand it. There are many things in this world that I cannot understand.

Can anyone say that they are of the type on whom prison gates should close to increase their sufferings? Have they ever stolen, assaulted, forged?

They are here because of what happened to them. That these poor, pursued suffering people, take them into your care as you would have them take you if you were in their place.

Take them not with anger, but with pity and understanding.

I'd hate to leave here thinking that I had made anyone's life harder, had not sympathized with suffering, had created, not relieved, suffering.

I have looked at this Island, which is a new country to me. I've never had any prejudice against any race on earth. I didn't learn it, and I defy anyone to find any word of mine to contradict what I say. To me these questions of race must be solved by understanding- not by force.

* * *

I have put this case without appeal to the nationality or race of any juror, asking them to pass on it as a human race.

We're all human beings. Take this case with its dire disasters, written all over by the hand of fate, as a case of your own, and I'll be content with your verdict.

What we do is affected by things around us; we're made more than we make.

I want you to help this family, to understand them. If you understand them, that's all that's necessary.

I'd like to think I had done my small part to bring peace and justice to an Island wracked and worn with strife.

You have not only the fate but the life of these four people. What is there for them if you pronounce a sentence of doom on them? What have they done?

You are a people to heal, not destroy. I place this in your hands asking you to be kind and considerate both to the living and the dead.


During his plea, which was broadcast to the mainland, Darrow brought tears to his listeners as he recounted how Mrs. Massie was bruised and beaten.

When Darrow had finished his plea, he appeared exhausted. He had talked for four hours and twenty minutes, and although he had held up well throughout, his age showed as he walked back to his chair.

The Honolulu Advertiser reported: "With words that unfolded like the immortal pages of a Greek tragedy, Clarence Darrow laid before the Massie-Fortescue jury the reasons upon which he is asking their freedom."

The jury was out two days. Their verdict: guilty of manslaughter. But they recommended leniency. The verdict was unexpected. Reactions were strong both in the States and in Hawaii. Senator J. Hamilton Lewis of Illinois urged President Hoover to investigate the case; Representative Thatcher of Kentucky, the home state of Lieutenant Massie, circulated a petition in the House asking the governor of the Island to pardon Massie and the others.

Darrow later wrote of this case: "Of course, all the attorneys for the prosecution and those for the defense, as well as the judge, knew that legally my clients were guilty of murder. Everyone, however, was talking about the 'unwritten law.'"

Judge Davis had stressed in his instructions to the jury that no one has the right to take the law into his own hands. It was these instructions which left the jury no choice but to render the verdict they did.

However, before the defendants had served more than an hour, their sentence was commuted by the governor of the Island.

Then for the first time in his life, Darrow was asked to be on the prosecutor's side. The attorney general of the Island asked his help in prosecuting Mrs. Massie's assailants in the retrial. The attorney for the defense declined, pointing out that never in his more than half-century of practice had he ever prosecuted anyone, and it was too late to start now.

What Darrow did do before he left was to convince the State and Mrs. Massie to drop further prosecution, to let the whole affair be forgotten as soon as possible.


"This is a man with an old face, always old...
There was pathos, in his face, and in his eyes,
And early weariness; and sometimes tears in his eyes,
Which he let slip unconsciously on his cheek,
Or brushed away with an unconcerned hand.
There were tears for human suffering, or for a glance
Into the vast futility of life,
Which he had seen from the first, being old
When he was born. *

* Arthur Weinberg, Attorney for the Damned (New York: Simon and Schuster, 1957), p. Xv.

Thus wrote Edgar Lee Masters in 1922 about Clarence Darrow, his former law partner. Perhaps nowhere in the annals of law does there appear another to match Darrow's devotion to his principles. It is not too difficult to disagree with many of his liberal ideas, but it is impossible not to admire his zealous and persistent defense of them.

Rhetorical criticism is sadly neglected in our modern age. Perhaps we have forgotten its true value which Aristotle expressed thus: "... when the practiced and the spontaneous speaker gain their end, it is possible to investigate the cause of their success; and such an inquiry, we shall all admit, performs the function of an art."

Lane Cooper, The Rhetoric of Aristotle (New York: Appleton-Century-Crofts, Inc., 1932), p. 1.

The speech to be criticized here is Darrow's plea to the jury in the Massie-Fortesque case. This speech was selected because here we can see the product of the whole man. He was seventy-five years old and had even experienced four years of retirement. A lifetime of experience was brought to bear as he pleaded for one of his favorite principles: that justice and the law were not always synonymous.

The critic of a comparatively recent plea to a jury is fortunate in that he can be sure that the words recorded are for all practical purposes the exact words of the speaker as he spoke them because of the accurate methods of court reporting. It could be possible for an attorney to have someone else write his plea for him, but a study of Darrow's life makes this not only improbable, but practically impossible.

Anyone who reads the stirring words of Darrow's pleas is led automatically into wishing that he could have heard these words as they were uttered by this instinctive psychologist. Although we cannot actually hear his words, we can mentally construct them to a degree by reading what others have said about his delivery. Justice William C. Douglas said, "He ran the gamut of emotions in his jury speeches. His arguments are a full orchestration, carrying great power even in cold print. They must have been overwhelming as they came from his tongue. Yet he was not the flamboyant type. His words were the simple discourse of ordinary conversation. They had the power of deep conviction, the strength of any plea for fair play, the pull of every protest against grinding down the faces of the poor, the appeal of humanity against forces of good and exploitation.'*

* Weinberg, op. cit., p. ix.

Lincoln Steffens described him as, "The powerful orator hulking his way slowly, thoughtfully, extemporizing… hands in pocket, head down and eyes up, wondering what it is all about, to the inevitable conclusion which he throws off with a toss of his shrugging shoulders: 'I don't know… We don't know… Not enough to kill or even to judge one another.'" *

*Ibid., p. xv.

Another student of Clarence Darrow, Arthur Weinberg, had this to say" "But behind the words is a more public image, a vivid impression of Darrow in a typical pose: an expanse of crumpled white shirt over that relaxed chest and stomach, one thumb hooked in his galluses, the other hand extended to make a point, striding forward in baggy gray pants and loose, hopelessly stretched jacket pushed back on his shoulders- striding forward and then stopping, staring straight into the jurors' eyes, turning, head hung in thought as the retreating voice come over the shoulder slowly, carefully, then all at once booming again. Sometimes witty, smiling; sometimes angry, scathing, merciless." *

*Ibid., p. xv.

As is usually the case, the construction of the social milieu of the period is essential for the critic to understand and appreciate the content of this speech.

"Difficult as is determination of the boundaries of original research, the objective sought for is clear and attainable. Like the historian, the rhetorical critic seeks some sort of unity in the pattern of social forces operating at a given moment in history. He seeks to secure a sufficiently large body of reliable data to enable him intelligently to understand a specific event- a speech, for example-- in its relation to the larger whole of which it is part." *

Lester Thonessen and A. Craig Baird, Speech Criticism (New York: The Ronald Press Company, 1948), p. 318.

When the white men came to the Islands the Hawaiians owned all the land. By one means or another, however, most of the land is now owned by the whites. "A clever Hawaiian princess is quoted as saying that the white man comes to Hawaii, and urged the simple natives to turn their eyes upward to God. They did as they were bid, but when they looked down to earth again their land was gone. * This caused the dark people (which included Hawaiian, Japanese, Portuguese, Chinese, Filipinos, and Puerto Ricans) to resent strongly the white people.

* Clarence Darrow, The Story of My Life (New York: Charles Scribner's Sons, 1932), p. 470.

On the other hand, there was no prejudice by the whites against the dark people of the island. This was perhaps caused by the fact that only the "pure" whites were considered white and the races were so mixed that it was impossible to discuss the color question for fear that you would offend someone who was "dark" and you did not know it.

The previous trial of the assailants of Mrs. Massie had amplified this feeling of resentment that the dark people had against the whites so that this had to be considered a factor in the trial. It was for this reason that Darrow decided to avoid the issue of race in the trial because any feelings that there might have been would have been against him.

The slanderous stories that had been circulated about Mrs. Massie also had to be considered. They had obviously cast some doubt in people's minds as to the integrity of Mrs. Massie, but Darrow cleverly used them to establish an understandable motive for Massie's desperate attempts to obtain a confession from the attackers of his wife.

The wealth of the whites was another source of resentment. Because the defendants in this case were comparatively wealthy, this factor had to be considered. Darrow repeatedly referred to the defendants as ordinary people, avoiding any reference that would give the impression of wealth.

Darrow noted that "the Hawaiians are the politicians of the islands. They seem to hold most of the offices, and are obliging and prompt in the service of the public." * The reaction of the police when Mrs. Massie reported her attack, however, was an exception. Darrow later wrote, "The conduct of certain policemen in charge of the case was soon under suspicion. Several of these officers at once took the side of the men who assaulted Mrs. Massie. This called for an investigation of the police department, and the chief and a number of other important members were dismissed, and the whole force reorganized."

* Ibid., p. 471.
** Ibid., p. 463.

This fact could have been an important factor to win sympathy for the defendant, but because of the political issues involved, Darrow chose to treat it lightly in his plea so as not to arouse resentment. Therefore, his reference to it was: "She gave her information to the police and they jeered and hinted and quarreled and haggled about what should be done." *

All social classes appeared to be treated alike on the islands and there were apparently no problems there.

Likewise, much to his surprise, Darrow found that the culture of the islands was very much like ours and so he had to make no specific allowance for it.

Whether or not Darrow intended to try this case on the basis of race difference or not, the situation did exist. For that reason the composition of the jury was very important to the presentation of the plea. Arthur Weinberg stated that the jury consisted of one Hawaiian, two Chinese, one Portuguese, and the rest native-born Americans. Darrow, on the other hand, reported that the jury consisted of six whites and six dark people. This discrepancy can perhaps be explained by the difficulty in determining when a person is classed as white and when he is not. Also it was discovered that two of the white jury members had Hawaiian wives. This made it necessary for Darrow to attempt to convince this mixed jury to acquit a white man after he had admittedly murdered a Hawaiian.

* Weinberg, op. cit., p. 108

Another important factor is to consider was that this case had received world-wide notoriety. The jury would know that the whole world would be watching the verdict. Darrow used this to great advantage because he knew that public opinion would have a bearing on how they decided the case. He expressed his strategy when he said, "The law was on the side of the State; life, and all the human qualities that preserve it, was with us. All we could do was to dramatize it as best we could." *

All this information combined to create the social situation into which this speech must fit. It necessitated that the defense must be based on human motivations and feelings that are common to all men so that the jury might develop a feeling of empathy toward the defendants in spite of previous prejudices or resentments.

When we consider the integrity of the ideas expressed in this plea it is apparent that the ideas will logically have no more merit than the man who conceived them. It then becomes necessary to analyze the intellectual stock of the speaker.

Aristotle stressed the importance of this concept when he said, "Now Rhetoric finds its end in judgment--- for the audience judges the counsels that are given, and the decision is a judgement; and hence the speaker must not merely see to it that his speech shall me convincing and persuasive, but he must give the right impression of himself, and get his judge into the right state of mind… As for the speakers themselves, the sources of our trust in them are three, for apart from the arguments there are three things that gain our belief, namely, intelligence, character, and good will.*

* Cooper, op. cit., p. 91-92

"To him the question was rather if the literal application of
the law in this case was the administration
of justice."

Darrow demonstrated his ability to recognize the true problem as it existed in this case. To most people the question was whether or not the defendants were guilty of murder, but he looked beyond that conclusion. To him the question was rather if the literal application of the law in this case was the administration of justice. He believed that under the circumstances the defendants were powerless to act any other way.

He had previously stated: "the instinct of repulsion brings hatred and dislike and, combined with the instinct of pugnacity, may lead to crimes of violence. When these instincts are string enough, the weak and superficial barriers cannot stand against time. An electrical flash showing the scaffold with the noose above it would have no force to stop an instinct and emotion fully aroused. Through seeing, feeling, hearing, tasting or smelling, some instinct is called into action. Many times several conflicting instincts are aroused. The man is like a tree bent back and forth by the storm. If the storm is hard enough, sooner or later it will break. Which way the tree falls has nothing to do with the consciousness of the tree, but has to do only with the direction of the prevailing and controlling force." *

* Clarence Darrow, Crime: Its Cause and Treatment (New York: Thomas T Crowell Company, 1922), p. 47.

Another time he had said: "But, beyond doubt, all persons are potential murderers, needing only time and circumstance, and a sufficiently overwhelming emotion that will triumph over the weak restraints that education and habit have built up, to control the powerful surging instincts and feelings that Nature has laid at the foundation of life." *

A part of his opening remarks again expressed this idea when he said, "This case illustrated the working of human destiny more than any other case I have handled. It illustrates the effect of sorrow and mishap on human minds and lives, and shows us how weak and powerless human beings are in the hands of relentless powers." **

This concept was in accordance with the principles of Aristotle as he had expressed them. "The speaker may argue that justice is a genuine thing and beneficent, but the mere show of justice is not, and hence the written law is a sham, since it does not produce the effect of true law." ***

The influence of this problem upon the social setting was also obvious to Darrow. He knew that the social unrest from the trial would not subside until the case had reached a satisfactory solution. In fact after it was over he said, "I felt, as we went away, that we were leaving the island more peaceful and happy than I had found it, for which I was very glad." ****

* Ibid., p. 87
** Weinberg, op. cit., p. 106
*** Cooper, op. cit., p. 80
**** Darrow, The Story of My Life, op. cit., p. 481

He also sincerely believed that a conviction would do much harm to the prestige of the island. This thought he expressed in his plea when he said, "when people come to your beautiful is Islands, one of the first places that they will wish to see is the prison where the mother and the husband are confined because they moved under emotion. If that does happen, that prison will be the most conspicuous building on this Island, and men will wonder how it happened and will marvel at the injustices and cruelty of men and will pity the inmates and blame Fate for the cruelty, persecution and sorrow that has followed this family." * Although it may appear at first that this was merely a lawyer's attempt to sway the jury, yet the reaction of the public immediately after the trial indicated that he was right.

*Weinberg, op. cit., p. 111

In retrospect it appears that Darrow used the only type of defense that could have kept his clients out of prison. He pleaded the case on the basis of motivations common to all men. He so dramatized the trial that public opinion accomplished what the legal processes could not, and his clients walked away free.

Darrow's method of defense made it possible for the jury to overlook their assumed prejudices and see the defendants as human beings regardless of race. The suggested solution to the problem became, as it was presented by Darrow, the only solution that would put an end to the bitterness on the Islands. All factions were satisfied. The law was upheld, but at the same time the defendants were set free.

Darrow's practical experience made him particularly well qualified to plead this case. He had tried hundreds of cases and knew how to handle a jury and the public. Harrison says, "In Chicago the legal profession had always held that Darrow was not a great lawyer, but that his strength lay in his eloquent and brilliant pleading with simple jurymen." *

* Charles Yale Harrison, Clarence Darrow (New York: Jonathan Cape and Harrison Smith, 1931), p. 251

An unusual thing about this plea is the almost complete lack of evidence to substantiate the argumentative development. There is one instance of testimony, and that is of minor importance. This was used when Darrow said" "An unbelievable story-- almost-- at least an unthinkable one about which even my friend who opened this argument for the State said: "It was a terrible story"-- so terrible that he pitied them. Still, he asked you to send these people to prison." * Because the jury had heard the attorney for the State make this remark it was accepted without question.

* Weinberg, op cit., p. 107

To minor references were made to personal experiences. These, also, we can assume carried some weight because of Darrow's long and famed career as a criminal attorney. Toward the beginning of his plea, Darrow said: "This case illustrated the working of human destiny more than any other case I have handled." * Then later he said. "I've never had any prejudice against any race on earth. I didn't learn it, and I defy anyone to find any word of mine to contradict what I say." * *

There were no examples of statistics or examples used, so these three insignificant bits of evidence were the only ones used. We cannot assume from that, however, that the speech was weak in its ability to convince. Darrow stressed, rather, clearly defined logical processes and a great many emotional appeals. This was not by accident, but rather the result of a carefully laid plan which fit the nature of the case. "There can be no doubt that allegiance to 'large principles of truth and reason' is the desideration of oratory, be it political, forensic, or ceremonial speaking. But all men are not completely prepared, intellectually and emotionally, to receive the truth in its boldest and least adorned guise; it must often be articulated or identified with feelings that will conduce to the good of the people themselves, of their party, or of their country. Any critic who fails to recognize this patent fact cannot possibly hope to evaluate the oratory of any period with the scrutiny and insight that the task requires." ***

* Ibid., p. 106
** Ibid., p. 116
*** Thonessen and Baird, op. cit., p. 381

This was a case of emotion and concepts rather than facts and evidence. Darrow, himself, best expressed this when he said: "Seldom have I known a case where there is less conflict in the evidence. There really was nothing to be denied. The law was on the side of the State; life, and all the human qualities that preserve it, was with us. All we could do was to dramatize it as best we could. In this, we had a great advantage: it was a gripping story, not only in Honolulu, but in the United States, whose press sent over many representatives. The story lent itself to publicity, touching, as it did, the deepest emotions and questions; and on all sides one heard how individuals and groups felt, and what they would have done. Really, people are much alike when one gets beneath the crust. * Then again: "As in similar cases, everyone was talking about 'the unwritten law.' While this could not be found in the statutes, it was indelibly written in the feelings and thoughts of people in general. Which would triumph, the or the unwritten law, depended upon many things which in this case demanded the most careful consideration. **

Major premise: Any act which is the inevitable result of noble feelings common to all people should not be punished.

Minor premise: The defendants' acts were the inevitable result of noble feelings common to all people.

Conclusion: Therefore, the defendants should not be punished.

* Darrow, The Story of My Life, op. cit., p. 476
** Ibid., p.468

As was previously stated, Darrow used clear, logical processes to lead to his conclusions. That is not to say that he stated his argument in formal syllogisms or even clearly defined enthymemes, but rather his thoughts can be paraphrased into the formal processes without too much difficulty. This was essential is the speech was to be great. "Aristotle held to his conviction that the most important ingredient of a speech is rational demonstration through severe argumentation." *

*** Thonessen and Baird, op. cit., p. 331

Two statements made in the plea express the ideas on which his logic is based. One is when he says: "It illustrates the effect of sorrow and mishap on human minds and lives, and shows us how weak and powerless human beings are in the hands of relentless powers." * The other: "Can anyone say that they are of the type on whom prison gates should close to increase their sufferings? Have they ever stolen, assaulted, forged?" **

* Weinberg, op.cit., p. 106
** Ibid., p. 116

Over all, the process of deduction was used. The entire speech can be paraphrased into a categorical syllogism stated as follows:

Major premise: Any act which is the inevitable result of noble feelings common to all people should not be punished.
Minor premise: The defendants' acts were the inevitable result of noble feelings common to all people.
Conclusion: Therefore, the defendants should not be punished.

The major premise we are inclined to accept because if we do not we endanger our own future. Darrow definitely believed it, and expressed himself quite clearly in his autobiography when he said, "In all situations the emotions are the moving forces among men, and through them, of states and all society. Reason has very little to do with human action. Reason is simply a method of comparing and appraising; it is always used to justify what the emotions demand. How far the reason of man can be used to inhibit emotions may be subject to debate, but it can go but a little way. The structure of man determines his course under certain circumstances. An impression occurs, the emotion is carried by a nerve to the brain. This is automatic; just as automatic as the response of the organism to the signal. * He continued on the assumption that this premise was accepted.

* Darrow, The Story of My Life, op. cit., p. 211

If, then, the jury could be led to believe the minor premise, the case was won because the conclusion would then become true.

Darrow used the inductive process to prove the truth of the minor premise. More specifically, he used the causal relation type of inductive reasoning. "Argument from cause relation establish links between particulars-- by noting the impact or influence of one event upon another, or by tracing the cause of an observed event… Basically, the concept of causation presupposes an interaction of phenomena. A given event is part of an unbroken series-- cause and effect operate within a system, with certain forces impinging more directly upon the event than other, but all occurring within a series of happenings. *

* Thonessen and Baird, op. cit., p. 348

Again we can paraphrase the arguments into a formal situation.

Cause: Lieutenant Massie loved his wife.
He wanted to clear her name by getting a confession.
He had been unable to get justice any other way
His mind had been subjected to unbearable torture.
Kahahawai said he had done it.
His mind blotted out.
Effect: Lieutenant Massie shot Kahahawai.

Cause: Mrs. Fortescue loved her daughter.
Effect: She helped her son-in-law.

Cause: Jones and Lord were loyal, devoted, and faithful.
Effect: They helped their shipmate.

The next step in the logical process again becomes deductive. This time a hypothetical syllogism best explains the logic:

Major premise: If the defendants' acts are the natural effects of the causes listed, then they are the inevitable results.
Minor premise: The defendants' acts are the natural effects of the causes listed.
Conclusion: Therefore, the defendants' acts are the inevitable results.

Major premise: If love, loyalty, devotion, and faithfulness are honorable emotions which we all have, then they are noble feelings common to all people.
Minor premise: Love, loyalty, devotion, and faithfulness are emotions which we all have.
Conclusion: Therefore, love, loyalty, devotion, and faithfulness are noble feelings common to all people.

A summary of these logical proofs shows how all proofs after the first syllogism are aimed at proving the minor premise. In conclusion, then, we assume the major premise and we accept the minor premise; therefore, the conclusion is true. In spite of the verdict, late developments seemed to prove that Darrow had been successful in accomplishing this with the jury. In other words the logical process must have been good because it did work.

In the use of emotional proofs, Darrow adapted his plea quite carefully to his audience. "The one legitimate means is reasonable argument; but since man is an emotional creature, and audiences are sure to be swayed by emotion, the speaker has to reckon with this side of his audience, and to deal with it. * He knew they were all men and so he spent a large amount of time explaining and giving an account of Massie's reactions to his wife's condition, and much less time was spent in explaining her reaction.

* Cooper, op. cit., p. xxi

This strong emotional appeal is sometimes considered unethical, but this does not have to be the case. Most assuredly it was not in this instance. "Speakers can make adjustments to hearers without distorting, suppressing, or in any way vitiating the integrity of their ideas; but practical wisdom decrees that they expound their views with forethought of the emotional makeup of the audience, with full recognition of the possible reactions of the group to the presentation. *

** Thonessen and Baird, op. cit., p. 360

He knew the jury consisted of laymen. He knew that they would be inclined to believe what they wanted to believe. "Persuasion is effected through the audience, when they are brought by the speech into a state of emotion; for we give very different decisions under the sway of pain or joy, and liking or hatred. * For these reasons the plea was constructed primarily of emotional proofs and clearly defined logic.

* Ibid, p. 136

He adapted his speech obviously to the political and social beliefs of the jury, but this was mentioned previously.

He did, however, adapt his speech to the general public. No doubt, this was done because he realized that in a case as popular as this, the jury would realize that the world was watching them and so they would not be inclined to go against public opinion.

The main appeal used by Darrow in this case was the technique of attempting to put the jury mentally in the place of the defendants. By actual count, sixteen times he asked the jury what they would do if they were in the position of the defendants, or words to that effect. This is a common appeal which could be understood by all men regardless of their prejudices, and was very cleverly used. "Now the hearer is always receptive when the speech is adapted to his own character and reflects it."

* Ibid., p. 136

There is much evidence to substantiate the belief that Darrow felt the emotions with which he worked. It was not uncommon for him to weep as he appealed to a jury. We can assume that he had this personal interest in this case when he says of Massie, I have seldom had a client for whom I formed a stronger affection." *

* Darrow, The Story of My Life, op. cit., p. 461

There can be little doubt that Darrow had done much during the trial to impress the jury with his character, sagacity, and good will, particularly his sagacity. It is natural then that the attempts to establish character are limited to a few references which Darrow considered important in context. Of the four examples which follow, all wish to establish good will. This is significant because it was primarily good will that Darrow was asking for from the jury. (1) "It has been a long, serious, tedious trial and you of the jury probably have had the worst of it." * (2) "I would not want to do anything to add to the sorrow of the mother of the boy (Kahahawai), or the father of the boy, or the cousin, who sit here. They have human feelings, I have too. I want you to have human feelings too. Any man without human feeling is without life." ** (3) "I'd hate to leave here thinking that I had made anyone's life harder, had not sympathized with suffering, had created, not relieved, suffering. I have looked at this Island, which is a new country to me. I've never had any prejudice against any race on earth. I didn't learn it, and I defy anyone to find any word of mine to contradict what I say. To me these questions of race must be solved by understanding- not by force." *** (4) "I'd like to think I had done my small part to bring peace and justice to an Island wracked and worn with strife." ****

* Weinberg, op. cit., p. 106
** Ibid., p. 114
*** Ibid., p. 116
**** Ibid., p. 117

When we consider the craftsmanship of construction of this speech, again we find that it adapts itself quite well to analysis. The theme which emerges from the entire plea is the one mentioned earlier when logical arrangement was discussed, namely, -- "the defendants' acts were the inevitable result of noble feelings which are common to all people and therefore, they should not be punished."

Basically, the plea is organized chronologically. The story as it happened is told from the beginning. Not only are the factual aspects of the story related in the order in which they happened, but the emotional reactions of the persons involved are traced and built up so that the result appears inevitable.

"Plato remarks that 'every speech ought to be out together like a living creature, with a body of its own, so as to be neither without head, not without feet, but to have both a middle and extremities, described proportionately to each other and to the whole.'" *

* Thonessen and Baird, op. cit., p. 397

The speech consists of the four parts or rhetorical order recommended by Aristotle, namely: exordium, exposition, proof, and peroration. It is reasonable to assume that the logical and rhetorical order was carefully followed so that the plea could be easily understood by a jury of laymen. By comparison, the plea to the judge in the Loeb-Leopold case was much more complex.

A reference to the plea will show that the exordium consists of the first paragraph. It is only two sentences, but when we realize that this plea had been preceded by a trial, we can see that it is adequate.

The exposition is presented in the second paragraph. This also need not be longer for the same reason.

The bulk of the speech is in the proof. This continues all the way to: "I believe I have covered this case as far as I care to go."

The remainder of the speech can be classified as peroration. This is longer than the exordium or exposition, because here Darrow must appeal for action. Prior to this he has attempted to convince the jury that his side is right, but now he must actuate them to do something about it.

This writing does not propose to be a complete critical analysis of this plea, but rather is intended to be a demonstration of the application of the main principles of rhetorical criticism. The writer is aware that if time permitted this study, or any similar study, could be continued almost indefinitely. It has clearly indicated that rhetorical criticism is a larger and more fruitful field than was thought possible. It has also given the writer new insight into the personality of the man who said, "I have stood for the weak and the poor. I have stood for the men who toil."

* Harrison, op. cit., p. 365


Lane Cooper, The Rhetoric of Aristotle. (New York: Appleton-Century-Crofts, Inc., 1932)

Clarence Darrow, Crime: Its Cause and Treatment. (New York: Thomas T Crowell Company, 1922)

Clarence Darrow, The Story of My Life. (New York: Charles Scribner's Sons, 1932)

Charles Yale Harrison, Clarence Darrow. (New York: Jonathan Cape and Harrison Smith, 1931)

Lester Thonessen and A. Craig Baird, Speech Criticism. (New York: The Ronald Press Company, 1948)

Arthur Weinberg, Attorney for the Damned. (New York: Simon and Schuster, 1957)