Ohio History Journal

HERBERT SHAPIRO

 

The Herbert Bigelow Case:

A Test of Free Speech in Wartime

 

 

 

 

On October 28, 1917, Cincinnati minister, the Reverend Herbert Bigelow was kid-

napped in Newport, Kentucky, shortly before he was to address a Socialist antiwar

meeting there. He was forced into a waiting automobile and driven across the county

line into Kenton County where he was severely beaten. After being turned loose by

the vigilantes, Bigelow made his way to a nearby house and was taken back across

the Ohio River to Cincinnati's Christ Hospital. At the hospital a local reporter ob-

served the marks of the whipping that had been administered to the minister and

photographs were taken.1

This incident was one of many violent acts of repression that were inflicted upon

those who opposed or questioned American participation in World War I. Socialists,

members of the Industrial Workers of the World, pacifists, and individuals of German

origin suffered physical injury and were denied their Constitutional rights. Little

toleration was shown for pacifists who criticized the war, even if their pacifism was

accompanied by moderate political views. A recent study of American pacifism

notes that "pacifists were, in fact, the target of prosecution because of their opposition

to conscription and their association with political radicals. They promised not to

obstruct the war effort, but their skeptical neutralism was itself a crime. Pacifists

found that their meetings were broken up; their friends were harassed, run out of

town and imprisoned; their literature was withheld from the mails; their headquarters

raided; and the president they trusted kept his own peace."²

There was, however, a special significance to the attack upon Bigelow. Herbert

Seely Bigelow was a leading progressive; his credentials as a reformer were impressive.

Along with prominent single-taxer Daniel Kiefer, Bigelow was a leader of the liberal

Democrats who had fought the Boss Cox machine in Cincinnati and also participated

actively in progressive affairs on the state level. He was a political ally of such reform

leaders as Toledo's mayor Brand Whitlock and the Cleveland progressives Tom

Johnson and Newton D. Baker. In 1911 Bigelow had been among the speakers at a

 

1. See excerpt from Herbert Bigelow's account at end of article. See also Cincinnati Enquirer,

October 30, 1917, for a similar account.

2. Charles Chatfield, "World War I and the Liberal Pacifist in the United States," American

Historical Review, LXXV (1970), 1934. See also William Preston, Jr., Aliens and Dissenters:

Federal Suppression of Radicals, 1903-1933 (New York, 1963); Horace C. Peterson and Gilbert

C. Fite, Opponents of War, 1917-1918 (Madison, 1957).

 

Mr. Shapiro is Associate Professor of History, University of Cincinnati.

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New York testimonial dinner for Tom Johnson, an event attended by many of the nation's foremost progressives. In that same year he was a leader of a statewide con- stitution committee that sought to restructure state government in Ohio. By 1917 it seems he had moved farther to the left and had become a member of the Socialist party on June 30.3 Examination of the 1917 assault upon Bigelow sheds light upon the response of the Wilson administration to the World War I crisis of free speech. This episode is useful also in understanding the brief history of the National Civil Liberties Bureau, the free speech organization that was originally a subcommittee of the 1916 American Union Against Militarism and the progenitor of the American Civil Liberties Union. The case makes clear some of the difficulties faced by a civil liberties organization that sought to stand apart from both the war effort and radical opposition to the war. Herbert Bigelow, minister of the People's Church and Town Meeting Society in downtown Cincinnati, was a moderate critic of United States involvement in the war. Prior to April 1917 he had opposed American entrance and following the declaration of war at times had continued to raise questions about the war program. He had advocated the holding of a national referendum to decide the question of peace or war.4 During September 1917 he had telegraphed Secretary of War Newton D. Baker to inquire about the Government's attitude towards the holding of a Socialist   3. The Tom L. Johnson Testimonial Banquet (Cincinnati, 1911); Cincinnati Enquirer, October 30, 1917; The Outrage on Rev. Herbert S. Bigelow of Cincinnati, Ohio (National Civil Liberties Bureau, 1918), 3. 4. See Daniel R. Beaver, A Buckeye Crusader (Cincinnati, 1957), 41.

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meeting in Milwaukee at which he was scheduled to speak. He observed that he did

not wish "to be put in the position of conflict with the Government," and he informed

Baker he believed that President Wilson's reply to a peace initiative by the Pope

"satisfied American public opinion and that the war should be prosecuted on that

basis ...." Bigelow also referred to the fact that he did not approve of the majority

resolution of the 1917 St. Louis Socialist party convention that had blanketly con-

demned American involvement in what was seen as an imperialist war.⁵ Baker had

passed Bigelow's telegram along to President Wilson as an indication of favorable

response to Wilson's message to the Pope.⁶

During October, however, a Justice Department agent reported that Bigelow in a

People's Church sermon had spoken critically of war profiteers and had supported

farmers who refused to buy Liberty Bonds. Toward the end of October Bigelow at a

church gathering in Cincinnati's Grand Opera House had offered a prayer that both

sides in the war should put down their arms so "that hate and violence may be met

by love." In this spirit he included the German Kaiser among those for whom he

prayed.⁷ Bigelow thus sought to identify with those who desired peace but he did not

wish to directly oppose the Wilson program. The minister's moderate posture concern-

ing the war, however, did not suffice to shield him from repression. His critical ex-

pressions were viewed as dangerous since official leadership wanted fervent support.

During the war tensions in Cincinnati were high, especially so in a city with a sub-

stantial population of German origin.⁸

On October 5, 1917, the Justice Department secured a search warrant to look for

 

 

5. Herbert S. Bigelow to Newton D. Baker, telegram, September 5, 1917, Woodrow Wilson

Papers, Series 2, Library of Congress. On August 27, 1917, President Wilson replied to an appeal

for peace issued by Pope Benedict XV. Wilson welcomed the Pope's desire for peace and stated

that the war's object was "to deliver the free peoples of the world from the menace and the

actual power of a vast military establishment controlled by an irresponsible government which,

having secretly planned to dominate the world, proceeded to carry out the plan without regard

either to the sacred obligations of treaty or the long-established practices and long-cherished

principles of international action and honor." Wilson asserted that the United States sought no

advantage from the war. The main point of Wilson's reply was a call upon the German people

to overturn the German government. See Ray Stannard Baker and William E. Dodd, eds., The

Public Papers of Woodrow Wilson (New York, 1927), III, 93-96.

6. Baker to Woodrow Wilson, September 6, 1917, Woodrow Wilson Papers, Series 2.

7. Report of Justice Department agent Barry, December 7, 1917, Department of Justice file

No. 188455, National Archives; Beaver, Buckeye Crusader, 43. The full text of the prayer was as

follows: "Our father in Heaven, as at the day of Pentecost Thy spirit descended upon the multi-

tudes, teaching peoples of strange tongues to understand one another, causing them to disregard

worldly possessions and filling them with a strange passion for brotherhood, so may Thy spirit

descend upon the war camps of Europe, teaching Germans and Frenchmen and Britons and

Americans to understand the language of each others hearts, their hunger for peace, their yearn-

ing for brotherhood; and just as of old, moved by Thy spirit the multitude cast away their

worldly goods, in their Pentecostal fervor, so may the German soldiers throw down their arms

by the millions, and may Britons, Frenchmen and Americans, seized by the same divine madness,

cast away their weapons of murder.

Grant us, O God, this miracle: May all the peoples of the earth discover speedily that it is not

revenge and blood and victory that they desire, but love and peace and federation.

Save the soul of the Emperor of Germany and the proud men surrounding him--save, from

their pride, all the Kings and Presidents and rulers of the earth--save us from shameful boast-

ings; save us from vehement speech; save us from the deadly sin of self-righteousness.

May all the world, repenting, in tears of blood, be forgiven these fearful crimes. May all the

rulers of the armies of the earth come and kneel at the feet of the Cross of Christ and pray; that

evil may be overcome with good; that hate and violence may be conquered by love. Amen." See

text of sermon in Herbert Bigelow Papers, Cincinnati Historical Society.

8. For examples of anti-German sentiment see Cincinnati Enquirer, January 10, 1918.

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Herbert Bigelow Case                                                      111

 

subversive materials in the People's Church building at Seventh and Elm Streets

where Bigelow had his office. The affadavit supporting the warrant described Bigelow

as a person "in aid of the Empire of Germany." Materials seized in the Justice De-

partment raid were not returned until many months after the end of the war. At the

end of October the management of the Grand Opera House cancelled arrangements

for future meetings by the People's Church where the congregation had met since

selling its Vine Street building in 1910.9

There was considerable variation in public reaction to Bigelow's whipping. The

Cincinnati Times Star stated in an editorial that it had little sympathy for the minister,

and "it is not difficult to understand the resentment of patriotic men at Bigelow's

attitude. But when that resentment takes on the form of physical violence, it is

wholly unjustifiable." Several nationally prominent progressives and pacifists rallied

publicly to his defense. David Starr Jordan, president of Stanford University who

before April 1917 had opposed American entrance into the war wired his concern

over the incident, and Amos Pinchot, leader of the American Union Against Milit-

arism, termed it a crime against American civilization. A ringing message came from

Senator Robert La Follette. The Senator compared Bigelow with Elijah Lovejoy,

Wendell Phillips, and Theodore Parker, men who had suffered for their roles in the

antislavery movements. La Follette declared: "If officials fail to perform their sworn

duty other steps will be found to unmask and punish those who sought through this

murderous attack upon you to destroy constitutional liberty."¹⁰ In New York Fred-

erick C. Howe, formerly associated with the Cleveland reform movement led by Tom

Johnson and now Commissioner of Immigration for the Wilson administration, noted

that the Cincinnati incident was a disgrace to the United States.11

Other reactions to the Bigelow whipping were not so sympathetic. Implicit in some

of the responses was the view that Bigelow perhaps had gotten what he well deserved.

Mayor George Puchta of Cincinnati was among those who would not lament what

had happened to the minister. The Cincinnati Enquirer quoted Puchta as observing:

"Every citizen gets proper protection in Cincinnati as long as he behaves himself.

That applies to all. If a person misbehaves he gets what is coming to him, and we

have police to take care of that."¹²

Several newspapers commented that there was no need to waste an excess of

sympathy upon Mr. Bigelow. The New York Herald declared that "Americans in

the past have had no difficulty in finding a way to suppress the seditionists in their

midst, nor will they have difficulty in that direction in the future. As for Mr. Herbert

Bigelow, the counts against him suggest that he was lucky in getting off with a good

hiding." The Boston Transcript expressed its disapproval of the beating but stated

further that "it is impossible not to note that he really got off unexpectedly well with

 

 

9. Memorandum of cancellation in Folder 5, Edward F. Alexander Papers, Cincinnati His-

torical Society.

10. Cincinnati Times Star, October 30, 1917; Cincinnati Enquirer, November 2, 1917.

11. New York Call, October 31, 1917. Another Cleveland progressive, prosecuting attorney,

later United States Senator, Stephen M. Young, privately expressed his concern to Bigelow.

Young described Bigelow as a man of "sterling character and high ideals" and was indignant

that anyone could commit "a cowardly and contemptible assault" upon the Cincinnatian. Young

wrote: "I do not agree at all with your reported expressions upon the President's plans and

policies, nor in your opposition to our participation in this war. However, that is another story,

as Kipling would say." See Stephen M. Young to Bigelow, October 30, 1917, Bigelow Papers.

12. Cincinnati Enquirer, October 30, 1917.

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only forty welts on his bare back." Particularly scurrilous in its treatment of Bigelow

was Comment, a wartime, super-patriotic newspaper. Comment declared: "It is the

pro-German, kaiser loving sympathizer, the man who impedes the progress of this

country in its march to victory to make the world safe for democracy who must be-

ware of the federal authorities, the Ku Klux Klan and the wrath of his fellow country-

men."¹³

The president of the University of Cincinnati, Charles W. Dabney, was intensely

hostile to Bigelow and communicated that hostility to President Woodrow Wilson.

Two weeks after the incident in Kentucky Dabney told Wilson bluntly what he

thought of the liberal minister: "Bigelow is a mountebank. In theology, he has run

the scale from orthodox presbyterianism to free thinking; in politics, he has been a

democrat, a wet advocate, and a socialist, as it suited his ambition. He wrecked the

great old Congregational Church, mortgaged and afterwards sold its building, and

used the money in his radical political campaign. Though the good people here dis-

approve of the assault upon him, they have no sympathy for him, for they believe him

to be an unprincipled demagogue, who would betray his country, if he could gain

thereby and save his skin."¹⁴

On November 21 Dabney forwarded to Wilson a letter written by a leading Cin-

cinnati minister described by the university president "as one of the most prominent,

reliable and loyal ministers in this city." In this letter Rev. Frederick N. McMillin,

pastor of the First Presbyterian Church in Walnut Hills, wrote that Bigelow used

church property to "further his erratic theories." McMillin described Bigelow as "a

self seeker and a demagogue," and he observed that Cincinnati citizens thought Bige-

low's recent remarks revealed him as a man "distinctly disloyal to our government."¹⁵

Woodrow Wilson was likely to pay serious attention to Charles Dabney and to

those Dabney respected. The two families had known each other for many years.

Some years earlier, in 1903, Dabney had expressed to Wilson his admiration for

Wilson's father. Dabney noted that the senior Wilson was a pillar of the Presbyterian

church and that "his scholarship was like a granite building.^"16 Sharing a common

regional background, common religious affiliation and extensive experience in scholar-

ship and university administration, Woodrow Wilson and Charles Dabney would

rather easily understand each other.

Indirectly Government leaders indicated their repudiation of the vigilantism ex-

pressed in the Bigelow episode. Three days after the whipping in Kenton County,

David Lawrence reported in the New York Post that the administration took the

view that this violence was "very serious and very reprehensible." On October 30

the Cincinnati Enquirer reported that Secretary of War Baker had been shocked by

the beating and that he believed the activity by masked men was lawless, brutal, and

cowardly. The sufferings of the Belgians were not helped by lynchings in the United

States.¹⁷

Neither local or Federal Government officials, however, would take any action,

 

13. Quoted in Cincinnati Times Star, November 1, 2, 1917; Cincinnati Comment, December

8, 1917.

14. Charles W. Dabney to Wilson, November 12, 1917, Charles W. Dabney Papers, Southern

Historical Collection, University of North Carolina.

15. Frederick N. McMillin to Dabney, November 20, 1917, Department of Justice file No.

188455; Dabney to Joseph Tumulty, November 21, 1917, Dabney Papers.

16. Dabney to Wilson, February 24, 1903, Woodrow Wilson Papers, Series 2.

17. New York Post, October 31, 1917; Cincinnati Enquirer, October 30, 1917. Baker also

privately expressed his forthright condemnation of the whipping. On November 7, 1917, he wrote

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Herbert Bigelow Case                                                          113

 

then or later, to identify and punish the men who had whipped Bigelow. Kentucky

Governor A. O. Stanley claimed he lacked the power to act in what was essentially a

local matter.¹⁸ Some months earlier, during January 1917, he had acted vigorously

against threatened vigilantism in a racial dispute at Murray, but he would not publicly

denounce vigilantes in the Bigelow case.¹⁹ Initially there had been some hope that the

Federal Government would take some action. Newton D. Baker did write to At-

torney-General Thomas W. Gregory offering to supply evidence that in August and

September "Bigelow was saying everywhere throughout the country that, while he had

been a pacifist and nonresistant, now that we were in the war on high moral grounds

the thing for us all to do was to sustain the country in its effort."²⁰ The Socialist New

York Call directed the attention of its readers to the Enforcement Act of 1870 in

which it was stated that "if two or more persons conspire to injure, oppress, threaten

or intimidate any citizen in the free exercise or enjoyment of any right or privilege

secured to him by the Constitution or laws of the United States . . . they shall be

fined not more than five thousand dollars and imprisoned not more than ten years."

But the Call itself had on October 31 quoted Justice Department official John Lord

O'Brian to the effect that unless federal officers had been impersonated, the Bigelow

incident was a local matter.²1 On November 5 the Cincinnati Times Star reported

 

Mrs. Henry Backus: "I certainly share your feeling as to the outrageous misconduct of which

Mr. Bigelow was a victim and have taken the liberty of speaking to the Attorney-General about

the matter. What it will be found possible to do I, of course, do not know; but no rebuke can

be too strong, nor any punishment too swift for those who thus make a reproach of our in-

stitutions, and a place of terror of our country." Newton D. Baker to Mrs. Henry Backus,

November 7, 1917, Bigelow Papers.

Baker further commented on the case in a letter to Senator John Sharp Williams who ap-

parently had described Bigelow as "that pro-German preacher." Baker noted: "The difficulty

with the whipping of 'that pro-German preacher' is that, so far as I have been able to discover,

Bigelow the victim, has not been guilty of a pro-German utterance since the war began, nor

before. He was a pacifist, but after we entered the war he gave up the friendship of his old as-

sociates because he took the position that now that we were in the war it was everybody's duty

to fight it through to a just and victorious conclusion.... I have a certain suspicion that the

fellows who took him out into the country and whipped him cared very little about his opinions

on the German question and very much more about his opinion on certain other economic

questions in which he was constantly agitating on the Democratic side--but I cannot prove this."

Baker to John Sharp Williams, November 22, 1917, Newton D. Baker Papers, Library of

Congress.

18. Edward F. Alexander to A. Mitchell Palmer, June 9, 1919, Department of Justice File No.

188455; Governor A. O. Stanley to Alexander, November 10, 1917, Folder 5, Edward F. Alex-

ander Papers, Cincinnati Historical Society. Stanley wrote: "Persons guilty of sedition should

answer to the courts and not to angry citizens who may feel disposed to take the law into their

own hands .... As a lawyer, it is not necessary for me to advise you, of course, that after such

offenses are committed, the authority of the Governor is exceedingly limited. Such matters are

then cognizant by the Courts having competent jurisdiction."

19. The governor had rushed to Murray by special train to protect local officials in danger

of reprisal for their part in securing a continuance for a black man, Lube Martin, charged with

killing a white man. Governor Stanley reportedly told the mob that if it resorted to violence it

would have to begin with him. See New York Times, January 12, 1917.

20. Baker to Thomas W. Gregory, November 6, 1917, Baker Papers.

21. New York Call, October 31, November 3, 1917. The Call did not consider the weight of

Supreme Court decisions, most notably in Civil Rights Cases (109 U.S. 3), that viewed the Four-

teenth Amendment as protecting Constitutional rights only against state action. However, the

Supreme Court in at least three cases appeared to uphold, on grounds other than the Fourteenth

Amendment, the constitutionality of the 1870 Enforcement act as applied to private action. In

Ex Parte Yarborough (110 U. S. 651), the court upheld the act as applied to private action by

individuals interfering with the right of duly qualified voters to elect members of Congress, in

Logan v. the United States (144 U.S. 262), the court upheld the Enforcement act as applying to

interference by individuals with prisoners held in federal custody and in United States v. Cruik-

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that the Department of Justice saw no reason for federal action, and on the following

day the Call noted that O'Brian had declared that a federal investigation would only

be ordered if the Justice Department was furnished with evidence that federal law

had been violated.²²

The National Civil Liberties Bureau later declared that O'Brian had told its Wash-

ington representative:

We will take action, will order an investigation and go to the bottom of the matter, if Mr.

Bigelow or any responsible citizen will present to us evidence--we do not care whether

in formal documents or not--which will tend to show that a federal statute has been

violated, or that federal officials have been neglectful of their duty.

In December Attorney-General Gregory wrote single taxer Louis F. Post that the

Government opposed mob law "in any shape or form," but the Attorney-General also

declared that he saw no reason for the Federal Government to make a public state-

ment about the Bigelow incident. The Justice Department chose to adopt a passive

posture with regard to the case and did not launch any investigation to determine

if federal law had been violated. In the absence of an investigation it was of course

quite out of the question that any federal indictments would be sought.²³

Following the whipping, President Wilson addressed himself publicly to the issue

of free expression. He spoke in Buffalo on November 12, 1917, before the conven-

tion of the American Federation of Labor. In the speech Wilson, apparently in re-

sponse to the Bolshevik seizure of power that occurred a few days earlier, noted his

amazement that "some groups in Russia" suppose that popular reforms can be carried

through "in the presence of a Germany powerful enough to undermine or overthrow

 

 

shank (92 U.S. 542), the court speaking obiter dictum had declared: "The right of the people

peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or

for anything else connected with the powers or the duties of the national government, is an

attribute of national citizenship, and as such, under the protection of, and guaranteed by, the

United States. The very idea of a government, republican in form, implies a right on the part

of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a

redress of grievances. If it had been alleged in these counts that the object of the defendants was

to prevent a meeting for such a purpose, the case would have been within the statute, and within

the scope of the sovereignty of the United States." Conceivably in the Bigelow case the Justice

Department might have tested the willingness of the court to find the Enforcement act applicable

to the situation in which the minister was forcibly prevented from addressing a meeting called

to redress grievances.

22. Cincinnati Times Star, November 5, 1917; New York Call, November 6, 1917. Rev.

Bigelow was incensed that the Justice Department would not publicly state that he was not con-

sidered disloyal. He wrote Baker: "Newton this will not do. If it were true that the Department

of Justice did not originate or support the doubts in the minds of the people Mr. Gregory would

be justified in taking the position he does, but unfortunately these doubts were originated, sup-

ported and have been permitted to exist by the Department of Justice. The people all over this

country who know me do not know that, to quote your letter, 'that the Deparment of Justice

has not in any way considered me disloyal.' The people do know however that the Department

of Justice raided my office.... They knew I had never been charged with disloyalty by any of

my countrymen before ... but when the Attorney-General's office raided my office my good name

was placed in doubt. It is in doubt now. It is being permitted to remain in doubt by the Attorney

General failing to return my papers and hymnals of my congregation. It will remain in doubt

until the Attorney General Thomas Gregory states what he has told you that the Department of

Justice does not feel I am in any way disloyal.... I ask that the statutes of the United States be

enforced in the protection of the rights of American citizens." Bigelow to Baker, undated draft,

Bigelow Papers.

23. Quoted in Outrage on Rev. Herbert S. Bigelow, 13-14; Gregory to Louis F. Post, December

8, 1917, Department of Justice file No. 188455; Cincinnati Enquirer, October 30, 1917.

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Herbert Bigelow Case                                                         115

 

them by intrigue or force." Turning to the home front the President declared: "I

have been very much distressed, my fellow citizens, by some of the things that have

happened recently. The mob spirit is displaying itself here and there in this country.

I have no sympathy with what some men are saying, but I have no sympathy with

the men who take their punishment into their own hands; and I want to say to every

man who does join such a mob that I do not recognize him as worthy of the free

institutions of the United States."

But Wilson also struck out sharply at those who opposed the war effort. "What I

am opposed to," he stated, "is not the feeling of the pacifists but their stupidity. My

heart is with them, but my mind has a contempt for them. I want peace, but I know

how to get it, and they do not." Wilson told of the pleasure he took in conferring with

Samuel Gompers. He liked to lay his mind "alongside of a mind that knows how to

pull in harness." But the mood of flattery suddenly shifted, and in the next sentence

the President added: "The horses that kick over the traces will have to be put in the

corral." Indeed the central point of the speech was that just as super-patriots had to

subordinate their individual vigilantism to national needs, so too would organized

labor have to subordinate its requirements to the common interest. Wilson put the

matter politely but his meaning was clear. He protested against lawlessness "any-

where or in any cause," and he informed the American Federation of Labor "that the

fundamental lesson of the whole situation is that we must not only take common

counsel, but that we must yield to and obey common counsel."²⁴ The Buffalo speech

expressed Wilson's negative view of vigilantism, but the speech significantly lacked

any commitment to take federal action in protection of the First Amendment in the

Bigelow case. In this context it is quite understandable that Woodrow Wilson's only

action taken with regard to the whipping was to encourage the writing of a newspaper

article that would outline what the Federal Government "can do in such cases, es-

pecially emphasizing its limitations."²⁵

Two days following the episode the Cincinnati Enquirer reported from Washington

that federal officials did not like mob action but they did not want to do anything

that would encourage opposition to the war. The Government policy was clearly and

succinctly outlined in a memorandum John Lord O'Brian, special assistant to the

 

24. R. Baker and Dodd, eds., Public Papers of Woodrow Wilson, I, 120-123.

25. Wilson to Gregory, November 17, 1917, Department of Justice file No. 188455. The

President also expressed his view of the Bigelow matter in conversation with the pro-war Socialist

John Spargo. On December 14, 1917, Spargo wrote Bigelow: "You will perhaps be interested

to hear that on Monday, in the course of a long interview with the President, as a member of the

delegation which waited upon him, I mentioned his failure to come out with some vigorous protest

against the outrage of which you were the victim. He seemed to be, and I think was, genuinely

surprised. 'Why I did, Mr. Spargo, I made my protest as specific and as definite as words could

possibly do.' I said: 'I suppose you refer to your Buffalo speech,' and he replied that such was

the case. Whereupon I rejoined that that declaration, splendid and vigorous as it was, came too

long after the actual outrage and was too general in its terms to be definitely attached in the

public mind to the specific event of, which you were the victim. I think the President was very

greatly surprised to be told that that was the general view among the liberals with whom I came

into contact, and he expressed his regret that such was the case. As nearly as I can recall his

words with reference to the assault, he said: 'I agree with you. It was a most shocking outrage

which I cannot too emphatically condemn. It is impossible for me to express how loathsome

such things are to me. I abhor them because of their danger to our democracy. I tried to express

my emphatic condemnation of the outrage committed against Mr. Bigelow, and my utter con-

tempt for all such lawless proceedings in my Buffalo address.' I thought you would possibly be

interested in this picture of the President's mental attitude upon a matter in which you are so

vitally concerned." John Spargo to Bigelow, December 14, 1917, Bigelow Papers. Wilson did

not make any public statement specifically referring to the Bigelow incident.

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Attorney-General, submitted to Attorney-General Gregory. O'Brian reported that

Bigelow "has been popularly regarded as thoroughly disloyal since the declaration of

war" and had been refused access to the Cincinnati Opera House "because of the

disloyal character of his utterances." After evaluating existing evidence, O'Brian

stated his conclusion: "In view of this I recommend that nothing further be done by

us."²⁶

Implicit in O'Brian's position was the notion that Government would seek to protect

the exercise of free speech only when it approved of what was being said. The Bigelow

episode helped to harden the administration's intense hostility to the expression of

dissent. Five days after O'Brian's memorandum was prepared Secretary of War

Baker declared that the person "who strikes us in the back" must be rendered harm-

less; there should be no hestitation in dealing with the disloyal. No further assistance

in the matter of upholding free speech could now be expected from Herbert Bigelow's

one friendly contact in the top level of the administration. As the war dragged on into

1918, another administration official expressed bluntly his lack of interest in protect-

ing the rights of dissenters. Stuart R. Bolin, the United States Attorney for the

Southern District of Ohio was quoted as declaring: "Our courts are not permitting

persons who have taken a stand against the Government in this war to seek shelter

behind the Constitution. The Constitution is being virtually suspended during the

time when America is facing this tremendous crisis."²⁷

In dealing with the Bigelow case the adminstration was able to draw upon federal

intelligence reports that portrayed the Cincinnati minister as a dangerous enemy of

the war effort. During the war federal agents engaged in widespread surveillance of

activities that were constitutionally protected. Instead of investigating the whipping,

they investigated Bigelow. On December 7, 1917, an intelligence report was sub-

mitted to Attorney-General Gregory that outlined the findings of the special agent

assigned to the case. Agent Barry had visited Cincinnati and determined that Herbert

Bigelow was "a rather radical pacifist" who allowed his pulpit to be used by Socialists

and other radical speakers. Among those appearing at the People's Church was Scott

Nearing, the radical professor recently dismissed from the faculty at the University of

Pennsylvania. The agent reported further that Bigelow's remarks "created consider-

able adverse criticism against Bigelow as to his loyalty." The Justice Department

did not drop its interest in surveillance of the Cincinnati minister. Fifteen months

following the Kenton County incident, early in the post-war red scare, a special agent

reported that Bigelow had spoken in Cincinnati on "The Good and Bad of Bolshe-

vism." In the speech he had urged that Bolshevism be given a fair trial and that

American troops be withdrawn from Russia. This report was included in the depart-

ment's file on the Bigelow case when Attorney-General A. M. Palmer in January 1917

rejected a fresh appeal for federal action.²⁸

The National Civil Liberties Bureau, however, responded very promptly to the

violence inflicted on the Cincinnati pacifist minister in 1917. On October 30, the

 

 

26. Cincinnati Enquirer, November 1, 1917; John Lord O'Brian memorandum to Greogry,

November 30, 1917, Department of Justice file No. 188455.

27. See Daniel R. Beaver, Newton D. Baker and the American War Effort, 1917-1919 (Lin-

coln, 1966), 237; Alexander to Roger N. Baldwin, September 16, 1918, quoting Bolin, Alexander

Papers.

28. Department of Justice report, December 7, 1817; Report of special agent Alexander,

February 9, 1919; A. Mitchell Palmer to R. F. Devine, January 14, 1920, Department of Justice

file No. 188455.

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Herbert Bigelow Case                                                   117

 

bureau's organizer, Roger N. Baldwin, wired Bigelow: "Our warmest sympathy and

best wishes we regard this as the most serious outrage on any individual since the

war began and will go the limit in backing any fight you make tell us what we can

do." Initially Bigelow communicated with the bureau through his attorney, Ed

Alexander. During World War I Alexander was the leading civil liberties attorney in

Cincinnati. Not a Socialist, he described himself a few years after the war as believing

"in the possibilities of the Henry George or Single Tax philosophy as a remedy for the

accumulating evils of our over-centralized, over-monopolized and over-mechanized

civilization." On October 30 the NCLB asked Alexander for full information as to

what had occurred. On November 1, 1917, the attorney wired the bureau in New

York outlining the known facts. The next day the NCLB issued a statement condemn-

ing the attack upon Bigelow. Federal action was urged and the bureau indicated a

mass protest meeting was to be held in New York "next week." Two weeks later

Roger Baldwin of the bureau communicated to Alexander his view that the Bigelow

incident was not simply a local matter, as Alexander's wire had indicated, but that

the inspiration for the whipping came from unnamed sources in New York.²⁹

In dealing with the Bigelow case the National Civil Liberties Bureau departed

from its main tactic of reliance upon negotiation and private influence with the Federal

Government. The bureau determined to utilize this whipping of a well-known pro-

gressive as a means of rallying public mass support in defense of free speech. At the

same time the NCLB would hold to its standard policy of separating the issue of

Constitutional liberties from that of opposition to the war.

Roger Baldwin and his associates, however, found that relatively little mass support

could be found for this position. Fervent opponents of the war generally insisted on

connecting the issue of free speech to the issue of war participation while supporters

of the Wilson administration were not often interested in protecting the rights of

dissenters. In the end the bureau was compelled to return to the tactic of quiet negoti-

ation with Justice Department officials.

From the outset the National Civil Liberties Bureau found it difficult to arrange a

public meeting in New York to discuss the Bigelow case. Efforts were made to secure

the use of Carnegie Hall, but on December 20, 1917, the Hall's management indicated

that their facilities would not be available. After some delay the bureau was able

to rent the Liberty Theatre and a protest rally was scheduled for the evening of

January 13, 1918. The announced topic of the gathering was "American Liberties

in Wartime."

The NCLB sought to prepare for this meeting. Invitations to join in sponsoring

the event were sent to a number of liberal organizations and to approximately seventy

prominent progressives. The returns were disappointing. The National Association

for the Advancement of Colored People and the Single Tax Association were among

the organizations that declined the invitation to sponsor the rally. Theodore Schroeder,

founder of the Free Speech League and prior to 1917 probably the nation's best

known civil libertarian, refused to have anything to do with the Bigelow case. Gen-

 

29. Baldwin to Bigelow, October 30, 1917, Bigelow Papers; 1924 statement by Edward Alex-

ander in folder 1, Alexander Papers; Alexander to NCLB, November 1, 1917, American Civil

Liberties Union Papers, New York Public Library; NCLB statement on the Bigelow case, Nov-

ember 2, 1917, American Civil Liberties Union Papers; Baldwin to Alexander, December 8,

1917, Alexander Papers. Alexander had stated that action against the theater owners which

resulted in the termination of Bigelow's lease was evidence "of a wide-spread business men's mafia,

which has Cincinnati by the throat."

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118                                                                OHIO HISTORY

erally a loner in his work for civil liberties, he refused to touch an issue that he felt

could not be separated from the matter of one's attitude towards the war.³⁰

A balanced group of speakers, nevertheless, was selected to address the audience.

The chairman for the evening was to be the Quaker Hollingworth Wood and he would

introduce Herbert Bigelow, radical muckraker Lincoln Steffens, the Christian pacifist

Harry F. Ward, feminist Beatrice Forbes Robertson Hale, and Presbyterian Church

worker Joseph E. McAfee. While these individuals might differ about the war, their

differences were not so sharp that they could not come together on the issue of pro-

tecting free speech. Lincoln Steffens was the most prominent of the speakers and his

approach seemed unlikely to offend either critics or supporters of the war. In its

publicity for the meeting the bureau announced that Steffens "believes the war came

from causes which will bring other and worse wars if we don't look out (and in)."31

Upholding the right of free speech the muckraker would look beyond the immediate

question of participation in the World War. In January 1918, following the Russian

Revolution, revolution--not war--most interested him.

To generate attendance at the meeting the bureau distributed fifty thousand hand-

bills in New York. Stated on them was the bureau's desire to take a conciliatory

attitude towards the Wilson administration. The objectives of the war were accepted

while issue was taken with acts of repression. The bureau asked: "Can a country

which is fighting for democracy abroad tolerate mob violence and suppression of

liberty at home?"³² In this question, the NCLB was making an assumption about the

democratic nature of the war that radical critics could not accept.

A capacity audience attended the January 13 meeting. Varying somewhat from the

announced program for the evening, the speakers included Lincoln Steffens, Joseph

McAfee, Herbert Seely Bigelow, Harry F. Ward, James H. Maurer, the Socialist leader

of the Pennsylvania American Federation of Labor, and a young clergyman, Norman

Thomas. Lincoln Steffens, the first speaker, portrayed Herbert Bigelow as the pro-

gressive victimized by reaction. He reminded the audience that Bigelow had been a

colleague of the Ohio progressives Brand Whitlock, Newton D. Baker, and Tom

Johnson. Steffens contended that those inflamed by war passions were too ready

to kill. He observed: "They were like the patriots and traitors who beat Herbert

Bigelow in Cincinnati." The New York Call quoted the muckraker as advising those

present: "Accept this war but do not accept the consequences of it. Underneath this

war there are forces fighting against the liberty and welfare of the entire world."³³

30. The NCLB's purpose: "For the maintenance in war time of the rights of free press, free

speech, peaceful assembly, liberty of conscience, and freedom from unlawful search and seizure."

Quoted in Outrage on Rev. Herbert S. Bigelow, 16. See Donald Johnson, The Challenge to

American Freedom (Lexington, 1962), 67, for an account of the NCLB's efforts in the Bigelow

case.

31. See announcement of Liberty Theatre meeting, American Civil Liberties Union Papers.

32. Handbill for meeting, American Civil Liberties Union Papers; Mary Ware Dennett of the

NCLB staff also expressed this view in a January 5, 1918 appeal for support of the meeting. Miss

Dennett wrote: "The aim of the meeting is to sound an unmistakable note of warning lest the

splendid avowed aim of our country in the war be blemished by a continuance of the instances

of mob rule, suppression and tyranny which have been so shockingly in evidence in the last few

months." The meeting was to be "one of the most necessary ways in which to back the President

and to purify our American motives and policy in the war program." NCLB circular letter,

January 5, 1918, Swarthmore College Peace Collection.

33. New York Times, January 14, 1918; New York Call, January 15, 1918. Steffens comment

expressed the dilemma experienced by many progressives. Having accepted the war, anti-im-

perialist progressives found they had little leverage with which to determine the outcome of the

struggle. Their support of Wilson made them followers rather than independent leaders of

public opinion.

• 11
 

Herbert Bigelow Case                                                   119

Bigelow himself saw his whipping as an incident in the long struggle in Ohio be-

tween progressives and their opponents. He put the blame at the door of the public

utility interests and he contended that the roots of what happened to him went back

to the 1912 fight to reform Ohio state government. Bigelow reaffirmed his commit-

ment to the progressive struggle: "That whip left no scar of malice on my soul. But it

did burn into my being an implaccable hatred of the system that could make such

fiends of men." But on the war itself and its relation to the violence in Kenton County

Bigelow had little to say. The fact was, Bigelow was not committed to opposing the

war. He had vacillated on the issue between April and October 1917, and following

the whipping he was quoted in Cincinnati as declaring: "I want the Kaiser sent the

way that Nicholas Romanoff went."³⁴ Bigelow desired the achievement of President

Wilson's war aims. His speech at the Liberty Theatre meeting, stirring in its defiance

of physical intimidation, was in keeping with the NCLB policy of separating the issue

of free speech from the pros and cons of the administration's war policies.

The Liberty Theatre gathering was significant as a public reaffirmatian of belief

in free expression.³⁵ It was evidence that some progressives would vigorously protest

acts of flagrant vigilantism. But it also provided evidence that in the context of

World War I civil libertarians could not develop a widely inclusive, mass movement

that would ignore the war and focus upon the issue of free speech. The Wilson ad-

ministration would not be moved to take action against vigilantism, and the NCLB

returned to its work of providing legal assistance to the victims of repression. During

World War I the organization that later became the American Civil Liberties Union

separated itself from the antiwar movement. A policy was established that was not

to be altered until the United States confronted the tragedy of the war in Indochina.

 

 

Herbert Bigelow's Account of the Whipping on October 28, 1917

 

At a New York protest meeting held on January 13, 1918, Bigelow spoke of what

happened following his arrival at a meeting hall in Newport, Kentucky:

*  *   *

"The entrance to the hall was on Sixth street, and I noticed some parties then

gathered on the sidewalk, and around what appeared to be the door of the en-

trance. Seeing the men, I asked Mr. Mooney if there were prospects of a good

meeting. He answered in the affirmative. But by that time I was up against some

of the men in the crowd. A man standing near the building turned to me and

said: "Is this Mr. Bigelow?'

"I said 'yes,' and put out my hand to him. He took my hand and said: 'We

want you to go over to headquarters before the meeting.'

"Instantly another man seized my left hand. They snapped handcuffs on both

wrists.

"I said: 'Where are you going to take me?'

"A man on my right answered: 'To headquarters.'

 

34. Outrage on Rev. Herbert S. Bigelow, 15; Cincinnati Enquirer, October 30, 1917.

35. The meeting adopted a resolution addressed to Congress, "in the interest of liberties guaran-

teed by the Constitution, asking that an immediate Congressional inquiry be made into the

actual facts of those violations of Constitutional rights, mob violence, and censorship, and par-

ticularly the efforts to use the war as a means to crush labor." NCLB press release, January 13,

1918, Bigelow Papers.

• 12
 

120                                                          OHIO HISTORY

 

"I made no response. I supposed they were Government secret service men.

I preferred to rely upon my innocence of wrong and upon the justice of my Gov-

ernment. Resistance would have been likely to involve my friends with me in

personal injury and serious charges, although I hardly formulated such a thought

at the time.

"I was put in the back seat of a large machine, which was standing at the

curb. My two captors seated themselves on each side of me and holding the

handcuffs.

"Another man got in in the rear and stood in a stooped position, facing the

crowd, with a revolver in his hand. The top of the machine was up and the cur-

tains were quickly cloced [sic] apparently by some one on the outside. There

may have been a fourth man in the rear, for while the machine was started and

began to pull away, some one tied a padded cloth over my mouth, and tied ropes

around my feet. After that a bag was slipped over my head. In that position I rode

with my silent companions over city pavements, across bridges, up and down

hills, on country roads--some rough and some smooth--of course, I had no

sense of direction, and little sense of time. But I could tell that we were riding at

a high rate of speed, and while we were on city pavement, the horn was being

sounded almost continuously.

"Finally the machine halted. There was a light from the rear which I could

see through the bag, and I was deceived by that in supposing that we were near

a city lamp. All sat motionless for a time. I heard an approaching train. This

told me that we were near a railroad and I concluded that they were waiting to

load me on the train. I speculated as to whether I should have to be exposed with

the handcuffs on the train. Just before we came to a halt a man felt me over,

apparently to discover weapons. He took from my overcoat pocket a box of

candy which had been given me for my daughter.

"The sound of the train died away. There were whistles and movements.

The curtains were pushed back. The men at my side seemed to be leaning out of

the machine as though they were looking for confederates on the road.

"Presently my feet were untied, the bag taken off my head and I was helped

to the ground. Though still gagged, I could see. It was a bright moonlight night.

There were many men, from 25 to 40 perhaps, wearing white masks and aprons

or skirts of the same material.

"These men appeared to be gathering from a line of automobiles in the rear.

This explained the light I had seen through the bag. The machines that had fol-

lowed had remained too far in the rear for me to hear them. One who acted as

leader held aloft an electric light, though there was no need of lighting it.

"With a sweep of this object he indicated in silence that the company was to

ascend the hill. It was a rather steep but short hill on which stood a little frame

school house. I was led around the farther side of the building to the rear. Before

alighting from the machine my hands had been tightly fastened together.

"I was led to a tree and my hands were disjoined. Other line cords were tied

to each handcuff and the men drew my arms by these ropes around the tree.

"Then the leader said: 'Off with his clothes,' and my arms were released suf-

ficiently to enable them to take off my overcoat, coat, vest and suspenders. Then

a man with what appeared to be a black snake whip, which I had seen while com-

ing up the hill, stepped forward and took position to strike. He awaited the word

• 13
 

Herbert Bigelow Case                                                   121

 

of the leader, who said: " 'In the name of the women and children of Belgium

and France lay on.'

"I was struck probably six or eight times, the man hauling off and swinging as if

with all his might. When he stopped to rest, or for further command, he was

ordered to continue. I can not be certain whether the same man or another con-

tinued the whipping. How many more times I was cut I am not sure, but not

many, perhaps, ten or twelve in all.

"After this, while standing almost naked, a man began cutting locks of hair

off the top and front of my head. Then something out of a large bottle was

poured on my head and sopped over my hair. It smelled like crude oil, which it

turned out to be.

"Permit the man to dress," the leader then commanded.

"This done, the leader began waving the men away. The most of them disap-

peared around the school house and I could hear the noise of starting machines.

"But before he left, the leader said: 'You are to remain there ten minutes after

we are gone.' By this time I was stood up with my face to the side of the house.

"The leader further said to me: 'You are to be out of Cincinnati in 36 hours

and remain away until the end of the war.'*

* * *

 

* See pamphlet, The Outrage on Rev. Herbert S. Bigelow of Cincinnati, Ohio (National

Civil Liberties Bureau, 1918), 8-12.

• 14