Cornell University Library LB 2844.1. P6T81 The Trial of the three suspended teacher I'l ■ 1 1 ' II 1 1 ii ■l II r II III 1 IN II T III 1 1 ii|i II 11 111 II 3 1924 001 805 021 p6 T' t I THE MARTIN P. CATHERWOOD LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS AT CORNELL UNIVERSITY \ DATE DUE 1 GAYLORD PRINTED IN U^A Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924001805021 THE TRIA£ OlF" thb THREE SXJSD^ENDED TEA.CBCEPIS OV THE r)E WITT CLINTON HIGH SCHOOL ■ Pui;lif.iici! for TEACHERS' p EF^N"§|: FUND Room 909,-; :tc , ., New York City Limited Number of Copies fo Members of the Teachers Unio Only One Dollar per volumf Feb.- March, 1918 1 A R A R £ O F F E R. Department of Education of the City of New York, In the Matter The Charges of Conduct Unbe- coming a Teacher, Preferred by Associate Superintendent TiLDSLEY, against Thomas Mufson, A. Henry ScHNEER and Samuel D. ScHMALHAUSEN, teachcrs in the DeWitt Clintoh High School. BEFORE THE COMMITTEE ON HIGH SCHOOLS AND TRAINING SCHOOLS, ROOM 704, HALL OF THE BOARD OF EDUCATION, FIFTY-NINTH STREET AND PARK AVE- NUE, NEW YORK CITY. November 22nd, 1917, 3:00 P. M. FIRST SESSION. Present — John Whalen, Chairman. E. L. WiNTHROP, Miss Olivia Leventritt, Property of Prof. F. H. GiDDiNGdyiARTIN P. CATHERWOOD LIBRARY A. s. SoMERs. NEW YORK STATE SCHOOL J. Greene, INDUSTRIAL AND U60R REUTIONS Prof. F. W. Atkinson. Cornell Unhwrwty Appearances : Charles McIntyre, Esq., and Wm. E. C. Mayer, Esq., Assistant Corporation Counsels, for the Board of Education. Herbert C. Smyth, Esq., Attorney for Thomas Mufson, A. Henry Schneer and Samuel D. Schmalhausen, by R. Wellman, Esq., of Counsel. President W. G. Willcox and Secretary A. E. Palmer, for the Board of Education. Chairman Whalen : Thomas Mufson, A. Henry Schneer and Samel D. Schmalhausen have been directed to appear before this Committee for the purpose of trying charges preferred against them last Monday, ^re they here? Mr. Wellman: I understand that none of the gentlemen are here. Mr. Schmalhausen: They are here now. Mr. Wellman: Mr. Chairman, and gentlemen of the Committee — Chairman Whalen: You are counsel for the defendants ? Mr. Wellman: I am appearing here solely as a messenger from Mr. Herbert C. Smyth, who has been retained as counsel for these three gentlemen. I have not been retained as counsel. Chairman Whalen: You are associated with him? Mr. Wellman: I am one of the assistants in the office, but I know nothing about this case, am not authorized to appear for these gentlemen, and have not been retained. I merely bear a letter from Mr. Smyth addressed \o Mr. Whalen. Chairman Whalen: Is Mr. Smyth their counsel? Mr. Wellman : Mr. Smyth has been, retained, wap retained late Monday, and I shall be glad to read this letter to the entire Committee. Chairman Whalen: You can state the sub- St. nee of it, and make your request, whatever it IS. Mji-. Wellman: Mr. Smyth states that he was retained late Monday night and asks that the hearing be adjourned to some time at the Com- mittee's convenience, preferably the latter part of next week, on several grounds: That he has not had sufficient time to consult with his clients respecting the subject matter of the charges, which are rather detailed, and also he is at present engaged in the trial of the case of Bauman V. Ostriche before Mr. Justice Philbin and a jury in the Supreme Court, so that he is physical- ly unable to be here. He also states in this letter that most of his time out of court lately has been taken up with the preparation of the Newsprint Paper Trust case, in which he has been employed as Special United States Attorney on behalf of the Govern- ment, so that he has not had time to consult with these gentlemen, if he had otherwise been able to. He closes: "Feeling convinced, as I do, that your Committee intends to afford these gentle- men a fair opportunity to present their case, I feel confident that you will immediately recognize the justice of this request." This is the letter, Mr. Chairman. These gentlemen have a letter of their own and I should like to read that, or they, as you please, Mr. Chairman. Chairman Whalen: Is it to the same effect, Mr. Schmalhausen? Mr. Schmalhausen : Yes, more or less. I should like to read it if you do not object. Chairman Whalen : Let me see it. Letter handed to Chairman Whalen. Chairman Whalen: I have no objections to your reading it, except one of the statements is not correct, because we have not shifted the dites at all. "^ Mr. Schmalhausen: Judging by the newspaper reports. Chairman Whalen: We are not going to try anybody here on newspaper statements. Mr. Wellman: I might add, Mr. Chairman, that I am rather overwhelmed at the number of people here whose convenience will be sacrificed by putting it over. It is entirely unavoidable; I did not foresee it. Chairman Whalen: They are not here at our invitation. We did not invite anybody to come except the three men that are accused. Those are the only men we invited to come here. Now, Mr. Schmalhausen. Mr. Schmalhausen read the following letter: • "New York, November 22, 1917. To the Honorable John Whalen, Chairman of the Committee on High Schools, 500 Park Avenue, New York City. Dear Sir: May we three suspended teachers from the DeWitt Clinton High School, A. Henry Schneer, Samuel Schmalhausen, Thomas Mufson, request you to consider our plea for an extension of time on the following grounds : (a) By advice of counsel, we have been requested to ask for a postponement on the ground of insufficiency of time for ade- quate preparation of defense. (b) The specific charges were put into our hands as late as Monday evening at nine-thirty. In a case involving so many critical issues, justice demands an exten- sion of time that we ourselves may prop- erly arrange our notes and our material relevant to the cases in question. (c) Your Committee and your counsel, judging by the newspapers, have shifted dates several times in the course of the week with the evident result that we have not had any reliable way of prefiguring how much time might elapse between a promised date and the actual date finally agreed upon. (d) We are of the conviction that if the evidence in your possession is of such a nature as to conform to the laws of justice, no possible harm can be done to said evi- dence by a postponement of the bearing for a week or so. We assume that the ■demands of justice will be no less rigidly fulfilled a week or so later. In view of these weighty considerations, we respectfully request you, as Chairman of the Committee on High Schools, to grant us the courtesy of an adjournment until counsel and we shall have had suffi- cient time for a proper presentation of our defense. Very sincerely yours, (Sgd.) A. HENRY SCHNEER, SAMUEL SCHMALHAUSEN, THOMAS MUFSON." Chairman Whalen: You read this letter in regard to number "c", "Your Committee and your counsel, judging by the newspapers, have shifted dates several times in the course of the week." That is not in your letter at all; you added that. Mr. Schmalhausen : Yes. Chairman Whalen: The Committee is of the 6 opinion tliat you should go to trial to-day as they are ready to hear the case. It would be of great inconvenience to some of the members of the Committee to postpone the trial. Mr. Greene: I think they should have an ad- journment. Mr. Giddings: Mr. Chairman, I think they should have their adjournment. I think it will be for the interest of everybody, including the pub- lic, that they have the time for preparation that they request, it being understood that when the date is fixed they must be here and there must be no further postponement. Mr. Somers: This suggestion removes me from the case, Mr. Chairman, because I ani called out of the city. I will leave on Sunday for Cali- fornia and will not return until the 20th of De- cember. My visit is on urgent business and I am sorry to be obliged to go there. I had hoped that I might be present at the trial and hear the evidence and give these teachers the benefit of my judgment as to their guilt or innocence, so that if I am absent from the trial I want it dis- tinctly understood that I am not shirking any duty or responsibility that I owe to the city, or to myself, but it is because of a business demand that I cannot possibly avoid at this time. Mr. Greene: I have already indicated, Mr. Chairman, my disposition to give them an ad- journment. I certainly have put myself to con- siderable inconvenience in coming here, but I wanted to be here to assist in the trial. At the same time I think it is fair that they should have the time necessary for preparing their defense. Mr. Wellman: Mr. Chairman, may I interrupt just a moment because I do not know that I have made myself clear? I am instructed to withdraw the moment this Committee decides to go on. I am not retained as counsel. These gentlemen will be here by themselves, and they have re- tained counsel. Mr. Atkinson: I think that the request is a just one and I favor the adjournment. Miss Leventritt: I would agree to the adjourn- ment, Mr. Chairman. Chairman Whalen: What day would be con- venient for the Committee? They have asked for a week. Mr. Greene: This is a very inconvenient day for me. I can come Monday or Tuesday. Mr. Wellman: Of course, Mr. Smyth's request was for the latter part of the week. It will re- quire a good deal of preparation in some of these things, such as the bibliography that I think Mr. Schneer got up, supposed to contain something that should not be called to the attention of pupils. That requires considerable study. And then there are newspaper articles of another gentle- man — Chairman Whalen: The Committee are of the opinion that you should have a reasonable ad- journment. There is no use of discussing the merits of the case. Mr. Wellman: I was just showing the amount of preparation that would be necessary. Chairman Whalen: I know, and I appreciate it. Will Monday, the 26th, at 3 o'clock, be satis- factory? Mr. Greene: If you could finish the case be- tween three and six, well and good. Chairman Whalen: My notion is that we might finish the three cases in one afternoon and evening. Mr. Wellman: It occurs to me that unless the paper trust case is further adjourned, or disposed of otherwise than by trial — I know it is set for next Monday — the Federal Court is likely to sit until 4 o'clock and Mr. Smyth is Special United States Attorney in that case. 8 Chairman Whalen: Mr. Wellman, we are trying to accommodate you, and the Committee have practically unanimously agreed that you should have a reasonable time. It does seem to me that if Mr. Smyth is not free to try the case on Monday, why, you will be able to fortify your- self with the facts, it is a very simple case, and it does not require so much preparation, and you can try it quite as well. Mr. Wellman: I would repeat — Chairman Whalen: So you can be retained. Mr. Schneer, when we adjourn this now to Mon- day, the 26th, it is with the understanding that you will, be ready to go to trial that day, and if Mr. Smyth is engaged in court, you will try to get other counsel so you will be represented in the case. I want to say to you, Mr. Wellman, that our view is that under the new educational law per- haps they are not entitled to counsel, but whether my view is correct or not the case is of such im- portance that we are going to permit Mr. Schneer and his co-defendants to appear by counsel. Mr. Schmalhausen : May I make a remark? If the case is of such importance, why should we have any other counsel than the one we have chosen? Chairman Whalen: I have only told you that the adjournment now is to be made to a day certain, at your request, and on that date we hope you will be ready to go to trial. Mr. Schmalhausen: Friday, we think would be a reasonable time. Mr. Greene: 1 cannot come on Friday. If we can not try it on Monday of next week, why, put it over to the next week. Chairman Whalen: We can go on next Mon- day, the 26th. Set it down for Monday, the 26th, at three o'clock. 9 Mr. Greene: I would not like to have any sug- gestion made that we were hurrying them un- duly. Chairman Whalen: We are not hurrying any- body, I do not think. Mr. Smyth, I understand, has alrciady accepted, subject to his engagements. Mr. Schmalhausen : May I ask this: Does the Committee object to having it a week from Mon- day, as a reasonable length of time? Chairman Whalen: A week from Monday would be December 3rd; that is too far off. Mr. Winthrop: I would give them a reason- able time. Ask him if that is satisfactory to them. President Willcox: I see no objection to that. Chairman Whalen: Would you rather have it December 3rd? Mr. Schmalhausen: That is a week from Mon- day. Yes. Mr. Mclntyxe: I have a case before the Build- ing Committee on December 3rd. Mr. Winthrop: That could be adjourned, I should think. Mr. Somers: I would like very much to hear the evidence in this case. I think every member ought to be given an opportunity, if possible, to hear it. Mr. Mclntyre: I am just advised that the, other case can be disposed of to suit the convenience of the committee in this case, so I withdraw my statement. Any date will be satisfactory to me. Mr. -Somers: I was going to suggest that if a later adjournment could be agreed upon, I would come back, if I had to come back specially to attend the trial. Chairman Whalen: Can you get back by the 3rd of December? Mr. Somers: No, I cannot. I will not be there before the 2nd. 10 Chairman Whalen: Of course, we all would love to have you. We know the reason why you won't be here. Mr. Somers: I am willing to make any effort to be here. Mr. Mayer: Mr. Chairman, the Corporation Counsel wants to suggest that in making this adjournment for Monday, December 3rd, you set it down for that date peremptorily. Chairman Whalen: Oh, yes; this is the date that Mr. Schmalhausen has asked for himself. Mr. Greene: It is understood that it will not be postponed from that date. Mr. Schmalhausen: Yes, unless some one dies, or becomes ill; we mean to be here that day surely. Chairman Whalen: Is that agreeable to the Committee? Have you filed your answers yet, Mr. Wellman? Mr. Wellman: No, sir; these are merely the specifications. Chairman Whalen: You will file your answer, of course, before that time. Shall we fix the time when you should file your answers? What time do you say? Mr. Wellman: How much before the trial would you really require it? Chairman Whalen: If you file them a week before, would that be all right? Mr. Mclntyre: I think Wednesday before Thanksgiving would be ample time. Mr. Wellman: That is all right. Chairman Whalen: This trial of these three gentlemen is adjourned at their request to De- cember 3rd, at 3 o'clock. The answer in each of the cases is to be filed on or before November 28th. Mr. Schmalhausen: We want to thank the Committee v,ery kindly for the allowance of time. 11 I Mr. Greene: Is this Mr. Schmalhausen? Chairman Whalen: Yes. Mr. Greene: Mr. Schmalhausen, I notice in the press reports a remark by Mr. Schmalhausen to the effect that he thought he was going before a "packed jury." Is it a fact that you made that statement? Mr. Schmalhausen: Is there any reason why I should discuss that now? Mr. Greene: I wanted to know whether you had made that statement, or whether it was an un- authorized press r,eport. Was it an untrue re- port? Mr. Schmalhausen: I will discuss that at the time we meet in our regular hearing, if you do not object. Mr. Greene: Do you think you are being tried by a "packed jury"? Mr. Schmalhausen: If you do not objectj I will answer all questions when we have our hearing. Mr. Greene: I am asking you now before any- thing is done. Mr. Schmalhausen: Just now I refuse to an- swer, if I have that privilege. President Willcox: He does not deny it. Mr. Schmalhausen : I do not aifirm it. Chairman Whalen: Gentlemen, the trial is ad- journed to December 3rd at 3 o'clock P. M. (Whereupon at 3:35 o'clock P. M. the hearing in the above-entitled matter was adjourned to December 3rd, 1917, at 3 P. M.) 12 DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK. In the Matter of The Charges of Conduct Unbe- coming a Teacher preferred by Associate Superintendent TiLDSLEY, against Samuel D. Schmalhausen, Teacher in the De Witt Clin- ton High School. New York City, December 3, 1917. Met pursuant to adjournment at 3 o'clock P. M. Before the Committee on High Schools and Training Schools. Present — Mr. Whalen, Chairman, Mr. Atkinson, Mr. GiDDINGS, Mr. Greene, Mr. Harkness, Miss Leventritt, Mr. Somers, Mr. WiNTHROP. Appearances : Charles McIntyre, Esq., and Wm. E. C. Mayer, E^q., Assistant Corporation Counsel, for the Board of Education. Herbert C. Smyth, Esq., and R. Wellman, Esq., appearing for Samuel D. Schmalhausen. President W. G. Willc.ox and Secretary A. E. Palmer, of the Board of Education. 13 Chairman Whalen: The committee is now ready to hear the case of the three teachers, Professor Schmalhausen, Professor Schneer, and Professor Mufson. Mr. Smyth: At the outset, if it please the com- mittee, I deem it my duty to present a matter whicli is exceedingly disagreeable to me, in the first place, because of the nature of the protest that I am about to make, and, in the second place, because I have very long acquaintance with the Chairman about whom, under all other circumstances in the last twenty-five years that I have had the pleasure of his acquaintance, I could not think of raising such a question, but the public print and the evidence which is at our disposal leaves no other course open to me. I think I should very much like to leave the matter to the discretion of Mr. Whalen himself, but in view of the public statements made by the Chairman, and particularly in an edition of the Evening Telegram on November 25th last, and in other publications, published throughout the City, it has been borne in upon me as represent- ing these three teachers, that Mr. Whalen has rendered himself unfit to preside as a member of this Committee, because apparently he comes in as a judge with a prejudice against them, which to my mind makes it impossible to insure, so far as the Chairman is concerned, these gentlemen will have a fair and unprejudiced hearing. There is much evidence at my command, and which I assume will come out during the course of the hearing, that the genesis of these charges was in a resolution which was passed by the Teachers' Council, which condemned or criti- cised the Chairman's action in utterances which he had made with reference to the prolongation of hours of work of the teachers and school hours of the pupils, a subject which is utterly 14 foreign to the charges as will be easily seen by reading the charges themselves. It appears that in getting at who should be made defendants or respondents in this proceeding that in the course of the investigation the principal inquiry made of the witnesses, including the accused teachers, was not with reference to the particular charges, but the first and important question asked was "Did you vote or have any part in giving light to the so-called Whalen resolution?" the resolution which I have referred to which criticised the Honorable Chairman. Now, under these circumstances I respectfully lodge a protest, and I say respectfully, because I have the greatest amount of respect for Mr. Whalen as a lawyer, as an officer, and as a citizen, but at the same time were I in his place I would deem myself equally unfit to act in the dual role of accuser and judge. It is a position which is absolutely opposed to all our democratic institutions. It was one that was guarded against at the time that this Republic was bom, in fact, and it seems to me, that as I feel it must be the desire of all the members of the committee, including the Chairman himself, that they shall have judges who are just as impartial, sitting here with regard to the gentlemen, as would be the case if they were to be tried in a court of record down in the court house where Mr. Whalen has often graced the Bar at that tribu- nal, and under these circumstances I now make a formal protest against Mr. Whalen acting as chairman. Mr. Mayer: If the Committee please, the pro- test which my learned adversary has so suavely lodged does not seem to me to be at all in point. He speaks of your Chairman as the accuser. Of course, the Committee knows that neither the Chairman nor any other member of this Com- 15 mittee preferred these charges. They come from an entirely different source. ' He is the judge, it is true. We Iiave understood for some time that some such claim as is now made was go- ing to be made against the Honorable Chairman of this Committee. We do not believe that it is pertinent. We do not believe that the law as it is generally understood will view with dis- pleasure the sitting of Mr. Whalen as a member of this Committee. Here he is acting as a public official. He is sworn to do his duty. The law demands that he will do his duty to the fullest extent, and with justice and without malice to- ward the accused. It lies wholly within Mr. Whalen's conscience whether or not he sits in this Committee. He cannot be ousted from this Committee by a protest of this kind which is far afield from the matters which will come up for judgment here. I therefore urge that Mr. Whalen in accordance with the dictates of his own con- science remain and sit as a member of and chair- man of this Committee. Chairman Whalen: I appreciate very much Mr. Smyth's position and recognize that it was his duty of course to make the objections. I know that there is nothing personal about it at all. Mr. Smyth: Not at all. * Chairman Whalen: Not at all. I submitted the matter to my Committee and they cannot see any reason in the world why I should not sit. I never expressed an opinion in the cases now before us, and I am not aware that I have ever mentioned the names of the defendants. I gave a correct description of the kind of teacher that I thought ought not to be in the school, and of course, if you admitted that that description fitted your clients, then I would have to admit that I have expressed an opinion which might be 16 taken as being opposed to them. If they do not fit the description- then of course no harm has bee^ done your clients because their names were never mentioned. However, your objection is overruled and you may have an exception. Mr. Smyth : That our position may be correctly understood Mr. Chairman, the views expressed by you in the abstract have my hearty concur- rence. It is because of information that has come to us that you have attempted to apply those views to the three teachers, or that we fear that this testimony points in that direction, that I filed a protest. If the description were to fit my clients I would not be here defending them. Chairman Whalen: Therefore, it is quite clear that whatever I may have said does not apply to your clients in view of the statements you have just 'made. Now, No. 2 and No. 3 of your affirmative de- fense are overruled, and you may have an ex- ception to those, so that narrows the issue right down to the specific charges that have been made by the City Superintendent against your clients. I sincerely hope, and the Committee hope that you gentlemen, Mr. Smyth and the other counsel, will try this case without any feeling at all, try it in an orderly and dignified way as you always try your cases in court, and where you can stipulate in regard to testimony so as to shorten it, and we will be glad if you will do so. Mr. Smyth : I will do everything I can. Chairman Whalen: At the close of this and the other trials, if you feel you would like to argue the legal application as to the questions of fact brought out in the trial, we will be very glad to hear you. Mr. Mclntyre : We will proceed with the Schmalhausen case. 17 Chairman Whalen: Yes. Mr. Mclntyre : These' are the by-laws of the Board of Education showing the jurisdiction of tliis Committee. May I offer them in evidence? Mr. Smyth: May I read them? Chairman Whalen: I ask you if your clients have any objection to reporters being present in the room? They have asked pei'mission to be here. Mr. Smyth: We have not. We leave that to your Honor entirely. Chairman Whalen: May I ask, Mr. Smyth, if you will agree that the pupils from the school who have been subpoenaed here may be excused from the room during the trial? Mr. Smyth: If your Honor thinks that is the better course. Chairman Whalen: All the pupils subpoenaed here will please leave the room, and the officer will take care of them in the meanwhile until they are called as witnesses. Mr. Mclntyre: It just shows the power of this Committee. Chairman Whalen: In order to shorten this trial we think maybe you can agree with the Corporation Counsel that the question here to determine is, not what took place before or after, but just what took place on this day that it will help. Mr. Smyth: Is there a date specified? I do not know what the date is. Mr. Mayer: We will bring the date out in the testimony. Mr. Mclntyre : I , offer in evidence certified copy of Section 13, Subdivision 7, of the By-laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 1 of this date. Mr. Mclntyrei: I offer in evidence certified 18 copy of Section 21, Subdivisions 4 and 5, of tlie By-laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 2 of this date. Mr. Smyth: As I understood the Chairman to say he asked me to stipulate that what we were to try is whether the charges that are made, hap- pened on the day intended or mentioned. Chairman Whalen: No, I mean these inter- views were said to have taken place. Mr. Smyth: May that be specified? Chairman Whalen: He says he is going to do it. Mr. Mclntyre: May I have the charges in the Sclimalhausen case? I offer in evidence the charges and specifica- tions in the case of Samuel D. Schmalhausen, served personally on Mr. Schmalhausen on No- vember 19th, 1917. Mr. Smyth: Your point is that you wish us to admit service. Mr. Mclntyre: There is no question about due and timely service. Mr. Smyth: Not at all. Mr. Mclntyre: 1 offer in evidence the charges and specifications, together with Mr. Schmal- hausen's answer. Mr. Smyth: Are you going to specify the date? Mr. Mclntyre: That will come out, Mr. Smyth. Mr. Smyth: 1 think it would be fair to us to know what date we are to meet here, the same as if it were an indictment. Chairman Whalen: Yes, Mr. Mclntyre. Mr. Mclntyre: Will you just wait until this is marked? Mr. Smyth: Yes. The charges were received in evidence and marked Exhibit No. 3. The answer was received in evidence and marked Exhibit No. 4. 19 Mr. Mayer: With regard to Mr. Schmalhausen, Mr. Smyth, the dates are occurrences in his class room on October 22nd, 1917. Mr. Smyth: October 22nd. Mr. Mayer: Yes, sir, and conversations with his principal and Superintendent Tildsley, and others on Noveftiber 1st and November 2nd, 1917. Mr. Smyth: Interviews with Dr. Tildsley? Mr. Mayer: And others. Dr. Paul and Mr. An- thony and others. ELLEN E. GARRIGUES, called as a witness, being duly sworn, testified as follows: Direct examination by Mr. Mayer: Q. Miss Garrigues, you are an instructor in the De Witt Clinton High School in the City of New York? A. I am. Q. And is that a school for boys? A. It is. Q. And what is your employment there? A. Do you want me to rise or shall I not? Q. No, you need not rise. A. I am head of the English Department, Chairman of the Eng- lish Department, First Assistant in English. Q. Do you know Mr. Schmalhausen, one of the instructors at that school? A. I do. Q. What class does he teach? A. He has sev- eral grades of work. Q. What subject does he teach? A. English. Q. As a teacher of that subject, is he under your jurisdiction and supervision? A. Yes, sir. Q. Do you remember ^n occurrence in his classroom oh or about October 22nd, 1917?, A. Yes. Q. With regard to some composition? A. Oc- tober 22nd was it? Q. Yes, 191,7. A. Yes. Q. Do you remember going to his room and 20 having compositions by his students of his class- room on a theme given by him to the boys to write on read? A. I do. Q. I show you tliis slip, and ask you if that is substantially the theme referred to? A. Yes— I do not remember that the word "very" oc- curred before "frank." Q. Did you speak to Mr. Schmalhausen about this theme on that occasion? A. I spoke to the class. Q. To whom? A. I spoke to the class as a whole. Q. In his presence? A. Yes. Q. What did you say? A. Well, about that? Q. About that theme? A. Well, pardon me, I did not say anything about that assignment to the class. Q. Did you speak to Mr. Schmalhausen about it? A. Not dn that occasion. Q. Not on that occasion? A. No. Q. On that occasion — Mr. Mayer: I ask that this paper be' marked for identification. The jjaper was marked Exhibit 5 for identifica- tion. Q. Now, Miss Garrigues, on that occasion tell what occurred in the classroom? A. I was sent to the classroom by the principal. I came in the class, and the boys had setting up drill as usual, and then our periods arc divided into two grades in the DeWitt Clinton High School, the first half is for recitation, and the second half is for Study. Mr. Schmalhausen called on a student to read his composition and he read the com- position on the subject given. As I rcnieniber his composition, the first one read, the boy ob- jected to the form of the draft because it called people who had dependents, and the comment of the teacher at the end of that, that that had 21 been remedied by the later adjustment of the draft. Then there followed a composition which objected to the Liberty Loan on the basis, of its calling upon the people who were already too highly taxed by the rise in prices. And as I remember no special comment was made on that. I am not sure about the next composition. I think there was another one read. I do not remember the contents of it. Finally one was read in which the young man said that it was somewhat unwise, I do not know that I can remember, but the general trend of the composition was, that we should not attempt to— Mr. Smyth: If this was in writing I suppose it would be safer to have the writing before us rather than the recollection perhaps, which might be faulty. , Mr. Mayer: These are not the facts in issue. Mr. Smyth: They are not the ones? Mr. Mayer: No. Mr. Smyth: All right. The Witness: Then the composition which was read, he asked me to tell all that occurred, as near as I can remember. Mr. Smyth: Yes. By Mr. Mayer: Q. I want to get to the point where we came to this composition taken up by you? A. Do you want me to tell what occurred in the room? Q. Yes. A. I was trying to do that as near as I can. Q. Yes. A. Finally a composition was read which said that we had, let me see, we should not attempt to promulgate democracy without having a better form of democracy here, and a boy jumped up and said that Germany had a democracy more truly than we. Another boy 22 jumped up and said that democracy in Germany was economic and not political. There was some discussion over that among the boys. I said to the boy who spoke "Are you an American citizen?" the boy who had made the statement, and he said "Yes, so is my father." I said "I can scarcely beheve it." By this time I was growing very angry, because there seemed to be a lack of spirit of love of country among the boys who had read. Q. Just what did you do? A. Then I— another boy began to read. The bell rang for the second half of the period. I said "We will take up all papers, and you will all hand your papers in to me," so they were all handed in to me. Mr. Smyth: By the pupils? The Witness: By the pupils directly. By Mr. Mayer: Q. Was this paper which I now hand you one of 1 those which was taken up by you from the pupils on that occasion? A. Yes. Q. What did you do with all those composi- tions, including the one you say was handed to you? A. I took them immediately down to the principal because I should have taken them in any case, some of them, but I took them all down to the principal and handed them over to him. Q. Including this one? A. Yes. Mr. Mayer: I offer this one for identification. The paper was marked Exhibit 6 for identifica- tion. By Mr. Mayer: Q. Then you left these papers with the Prin- cipal, Dr. Paul? A. Yes. Mr. Mayer: That is all. 23 Cross examination by Mr. Smyth: Q. The paper which is marked for identifica- tion No. 6, which is the letter written by the boy Herman, I suppose? A. Yes. Q. That was handed to you by Herman? A. It was handed to me, all the papers were handed to me by one boy, I do not know who handed them to me, they were collected and handed to me directly. Q. The marginal notes that appear on this paper were not there then were they? A. No. Q. And this letter was not shown to Mr. Schmalhausen? A. No, not by me. Q. Nor was it read in class? A. No. Mr. Smyth: There is no such claim? Mr. Mayer: No claim, of that. By Mr. Smyth: Q. Did you address a letter about this matter. Miss Glarrigues, to the School Editor of the Globe? A. I did. Mr. Mayer: I object to that as immaterial and irrelevant. Chairman Whalen: Yes, you had better not go into that Mr. Smyth. Mr. Smyth: Your Honor overrules the ques- tion and sustains the objection? Chairman Whalen: Yes. Mr. Smyth: We except. Mr. Mayer: If the Chairrnan please, the answer seems to have gotten in the record and f move to strike it out. Chairman Whalen: What answer? Mr. Mayer: The witness's answer. Chairman Whalen: Strike it out. Mr. Smyth: May I not establish the fact that a letter was written and make mention of its contents? Chairman Whalen: Well, perhaps you can. 24 Mr. Mayer: I withdraw the motion. Chairman Whalen: Strike it out. By Mr. Smyth: Q. You did write a letter, did you not, to the School Editor of the Globe with regard to your call there at the school? Mr. Mayer: I object to that as immaterial and irrelevant. A. I did write such a letter. I did not write it, it was not about that, it was about that whole situation at the school. It included — Chairman Whalen: You had not— would it not be better if you produced the letter and ask her if she did write that letter? / By Mr. Smyth: Q. I show you a paper which contains a quota- tion from that letter and ask you if that quotation was contained in the letter which you wrote to the editor? It is the part in capitals? A. Yes, I wrote that. Mr. Mayer: May I see that? Mr. Smyth: Certainly. By Mr. Smyth: Q. Is it true, Miss Garrigues, that what you observed there, that the response to the assign- ment that you were then fulfilling, was in itself largely patriotic? A. Not what I observed there. I looked over papers, the same assignment was made to another class, and I looked over other papers, and I found a very good many patriotic responses to the assignment, and in the other class very largely they were patriotic in their nature. Those that I heard there that day were not. That is the reason I was so particularly aroused. Q. "When you went to go over the papers them- 25 selves afterward? A. Those that were not read were many of them patriotic. Q. Patriotic? A. Yes. Q. And such compositions ' that nobody could take exception to, so far as their Americanism is concerned? A. Exactly. Q. Is that true? A. Yes, sir. Q. You knew no more about this Herman letter than Mr. Schmalhausen did at the time, did you? A. I glanced through it as I sat there. I glanced through the letters which were handed to me, and this one was one Of the first. Q. Yes. A. And it made me very angry and I think I perhaps especially noted it in handing it to the principal. Q. But you said nothing at all to Mr. Schmal- hausen about it? A. That particular letter? Q. Yes. A. I only said that I did not think that any of the* boys in the class knew what had been written, or they themselves would have been deeply ashamed. Q. And that is all you said? A. Yes, I said that to the class as a whole. Q. You said nothing to Mr. Schmalhausen? A. About this particular letter? Q. Yes. A. No, I do not think so. I spoke to him about the assignment. Q. You did speak to him about the assignment? A. Yes. Q. Did you state to him the purpose of the assignment, what the purpose was? A. I told him I thought it was an unwise assignment. Q. What else did you say in that regard, Miss Garrigues? A. That was after, an hour or two afterward, and I told him, yes, 1 think it was the same day, an hour or two afterward, I told him I thought it was a very unwise assignment and we had considerable discussion over whether it was wise or not. 26 Q. May I ask why you considered it an unwise assignment? A. I think the reason was that it was a little bit, in the nature of the wording, in- clined to lead boys who were either pacific, I think is the real trouble, or were unpatriotic— this boy unquestionably was unpatriotic, I think — to express themselves very freely, which I do not know whether it is very wise for boys of that age to do. Q. Was the word "very" in the assignment that you saw? A. I do not think it was, I am not very sure. Mr. Mayer: Suppose we put that in evidence. Then you can question on it if you like. Mr. Smyth: Let me first find out, Mr. Mayer, if we have it in evidence. Mr. Mayer : Very' well we can prove that later on. Mr. Smyth: Subject to its being stricken out if not proved. Mr. Mayer: I offer it in evidence. Chairman Whalen: Any objection? Mr. Smyth: No, except I reserve the right to move to strike it out if it is not properly con- nected later on. Exhibit No. 5 for identification was received in evidence and marked Exhibit No. 5 in evidence. Mr. Mayer: Now, just let me read it: "An open letter to the President. Write a very frank letter to Woodrow Wilson commenting within the limits of your knowledge upon his conduct of the war against the German Government." The witness says that this assignment is as she recol- lects it, except the word "very." It would read as she remembers it "Write a frank letter." Chairman Whalen: Who gave out that subject? By Mr. Mayer: Q. Who gave out that subject, Miss Garrigues? A. Mr. Schmalhausen. 27 By Mr. Smyth: Q. Was not the wording of the assignment in this wise: "An open letter to the President, comment frankly upon his conduct of the war against the German Government." Was not that the wording? A. Now that you ask me I am not sure, but I know the word "frank" is what troubled me. I think the word "frank" influenced the boys toward the expression of sentiment that perhaps would better not be expressed in the classroom. Q. After all so far as the wording of the assign- ment goes, whether it said "Write a frank letter" or "write frankly commenting on the President's con-duct of the war against the German Govern- ment", to your mind did that call for anything more than just such a discussion as we see in our daily newspapers from day to -day? A. I thought — ^ Q. No, is not that so? I atn now asking if that is not so? A. My own opinion was as I said, I thought it was injurious. Q. You are not answering this question at all. A. I am sorry. Q. The assignment as worded, did it really, in your opinion, call out anything more than such a discussion as we see very day in the various patriotic newspapers? A. If you put it that way; no. Q. Exactly the same is it not? A. Yes. Q. And I suppose that you sometimes have commented frankly on the conduct of the war by the President'? Mr. Mayer: T, object to that as immaterial and irrelevant. Chairman Whalen : That is cross examination. All right. Q. Have you not. Miss Garrigues? A. Well, I feel at liberty to. 28 Q. Certainly. And do you not bear in mind as a teacher that it is such a subject which, through attrition of ideas, really bears fruit in getting some valuable principles forward which it is worth whil^ for the community in general to think about and still be patriotic? A. This particular question. I do not know, that I can say that I feel that way about it. It was the 'vyording that troubled me, not the question. It was the wording of the question. Q. Have I not correctly stated the way the ques- tion was worded, "Write an open letter to the President and comment frankly upon his conduct of the war against the German Government"? A. The wording of the question I do not like. Q. Does not that refresh your recollection that that was the wording? A. I cannot be sure, but I daresay the correct wording was given by the teacher rather than by the boy; that is in the handwriting of the boy. Q. That was in the handwriting of the boy? A. Yes. Q. When was it made? jA. I think it was handed in at .the same time as the papers. > Q. So that may be his recollection? A. Yes. Q. Faulty or correct? A. Yes. Q; And at any rate you have nothing to criti- cize from your own point of view, have you, that frank comment is the perfectly legitinyate and proper thing for patriotic citizens whether they are young or old to indulge in; is not that so? A. I would not answer that question yes or no. Q. Let us look at it from another point of view. Would you consider comment upon the conduct of the war by the Pre/^ident which was not frank a proper way to discuss it? A. No. Q. Therefore, the element of frankness is es- sential to any discussion which is worth the while. Is not that so? A. I suppose so. 29 Q. So in that view of it there is nothing in this assignment which ought to cause any apprehen- sion that it would bring forth unpatriotic state- ments; is not that true? A. Well, I do not know that I can say one way or the other. I do think that there are assignments that can be so worded that they could avoid that element of risk that is in this one. Q. Now, Miss Garrigues,, you exhibit an abso- lute spirit of fairness in this matter, won't you please word that assignment in the way you think it ought to be worded. It is marked with a cross there? A. I should not give that assignment at all. Q. You mean you would not give it at all? A. I mean I should not give that assignment at all. Q. I| was not so much in the wording of the assignment as the subject itself, is that it? A. The subject seems to me wrong for as immature people as that. I think the wording made it a little bit, possibly I do not — I will say frankly for Mr. Schmalhausen that I do not think he realized at that time, or I do not think he believed he was going to cause such a storm that he did among the boys. Q. Is your trouble not perhaps that you have confused the word "comment" with the word "citioi^ed"? A. Possibly. Q. There surely can be nothing wrong in mak- ing coiliments on this subject so long as they are patri'votic, can there be? A. I believe in de- bate in the classroom on all current topics. Q. This w.qs a current topic? A. Yes. Q. Is not this just the kind of a subject which would stir the patriotism of the children rather than stir contrary feelings or instincts? A. That is what I do not feel, exactly. I felt the word was unfortunate; that it did not stir the boys as it should. Q. Now, that you are viewing the subject in 30 the light of your cross examination, do you not think that perhaps after all this was a perfectly legitimate subject to ask for frank comment in the sense of fair comment, on the subject which was of universal interest, and should be of in- terest to children as well as adults? A. They are not children. They are about seventeen years. Q7 So much the better. Young men of such mature age? A. Of course I think that criticism that comes out in the class is good, because it can be counteracted, but I do not feel that there was sufficient counteraction from the boys them- selves. Whether there would have been if the recitation ha-d been continued to the proper end, I do not know. Q. Have you not by this last answer struck the keynote of the real good of such a discussion? Is it not so that such a discussion would be apt to develop the sentiments of those who are patriotic, and statements from those who are unfortunately otherwise inclined, to the end that those who are in error may be corrected? And thus much good come from it? A. That is what I firmly be- lieve, but I am not sure that it was in effect in this particular recitation. Q. Is not that just the kind of thing that ought to result if proper comment were made? A^ Yes. Q. Do you not believe in your commente that you probably had some good results in ' calling attention to those things that you did riot think were particularly patriotic? A. I airv afraid I was too angry to have very much good effect. Q. Then it was more because of your mental altitude than because of your desire or oppor- tunity? A. (No answer.) Mr. Smyth: I think that is all at the present time. Mr. Mayer: That is all. Mr. Smyth: Oh, just o«e second. 31 By Mr. Smyth: Q. Who was it asked you to go to the class and make this investigation? A. The principal asked me. Q. Who is he? A. Dr. Paul. Q. Do you remember what he said at the time he made his request? A. He told me to go the room and visit the class and bring him the papers. Q. Was that all that was said? A. That is all' that I remember. Oh, yes. He said h^ thought it was a very treasonable assignment, that is an assignment I think, pretty near — I have for- gotten whether he used the word treasonable or not, but it, was a very unfortunate assignment, and near to seditious; I think he used the word sedition". I am not sure. Q. Was he then referring — A. To the assign- ment which he nad been given by a boy. Q. You are now referring to some paper? A, No, no, the assignment that had been given him. Q. The assignment that had been given in the various classrooms or in this one classroom? A. No, in this one classroom. Q. Had he the assignment before him at the time? A. Yes, it had been given to him. That is the reason he sent me to the room. Q. He said it was seditious? A. I cannot be sure. I do not want to quote him, because it is the memory of the effect of his words, he thought it was a very serious, unfair assignment and I should visit the class. Q. Is that all that you can recollect that was said by Dr. Paul at that time? A. I think that is all; yes. Q. Did he say anything at that time about any occurrence at a meeting of the Teachers' Coun- cil? A. No. Q. When you handed this paper back to Dr. 32 Paul which you had collected, you called special attention to the Herman letter did you not? A. I think so. I was very much wrought up, and I handed it to him, at least I was very much wrought up and I handed it to him and said it was very sad to me to think that more loyalty did not exist in the boys. Q. Did he make any exclamation at that time in reference to the position that he deemed Mr. Schraalhausen to be in? A. He said, I think — Yes, he said something. Q. What was it he said? A. He said, I think, "I have him now." Q. Are not the words that he said, "Now, I've got him"? A. I think so. Q. You think so? A. Yes. Q. Had you known prior to that time that Dr. Paul was trying to get something on Mr. Schraal- hausen? ' Mr. Mayer: I object to that as immaterial and irreleva!nt. Chairman Whalen: Yes, excluded. Mr. Smyth: Exception. Q. Do you remember having a conversation with Mr. Horowitz with regard to the object of the inquiry that was being undertaken against Mr. Schmalhausen ? Mr. Mayer: I object to that as immaterial and irrelevant. Mr. Smyth: I think I am entitled to show animus if there is any. Mr. Mayer: It does not make any difference V hetlier there was any animus or not. Chairman Whalen : No, I do not think it does. We are just trying this specific charge. Your client said, on this day these things. We won't pay any attention to the animus of Dr. Paul, if any, Mr. Smyth: It may have this to do with it 33 your Honor, that it will go to the credibility of those who framed the charges if they had a definite purpose and prejudgment coming from a definite purpose beforehand in attributing in- nuendoes or insinuations or interpretations or statements alleged to have been made by Mr. Schmalhausen. It sometimes takes but the trans- position of a little word to spell the difference be- tween guilt and innocence. If there has been a predetermined effort, in the words of Dr. Paul, "to get Mr. Schmalhausen," we find an underlying motive for that which will be illumin- ative when we come to hear the testimony of his Ecccusers. Chairman Whalen: Mr. Smyth, we are inter- ested in trying these charges, and if there is any feeling between Dr. Paul and Mr. Schmalhausen I do not, think that we want to go into that, because these charges are preferred by the superintendent and they are specific, and if we are going to undertake to try all these little thing|^that happened before and after, we will never get through with the trial of this case. Mr. Smyth: May I respectfully urge to your Honor that the only object I have in asking this particular question is to show that the genesis of these charges was an occurrence which had previously resulted in the adoption of the res- olution which were critical of your Honor. Chairman Whalen: Mr. Smyth, may I set you straight on that subject? The adoption of the resolutions by the five gentlemen composing the Teachers' Council of De Witt Clinton High School had nothing at all to do with ihe charges so far as I am concerned. The Witness : They occurred later. Mr. Smyth: They occurred later? The Witness: This statement, I think the res- olutions were made later than this conversation. 34 Chairman Whalen: I want to say further- more, that for the purposes of this trial I have assumed that they had a perfect right to pass any resolution that they saw fit, so if you will eliminate the resolution it will be very well, be- cause it has no relation whatever to this case so far as I am concerned. Mr. Smyth: It may not have been the resolu- tion itself, but it may relate to the activities of these teachers which led up to the • resolution, and I will ask this specific question and rest with your Honor's decision on it. By Mr. Smyth: Q. Did you not state, Miss Garrigues, that the object of this investigation which had been un- dertaken against Mr. Schmalhausen was to get the ringleaders of the Teachers' Council who were close to Mr. Whalen in the matter of lengthen- ing the school hours? Mr. Mayer: That is objected to as imma- terial and irrelevant. Chairman Whalen: I will let her answer that. A. I do not remember. I talked to Mr. Horo- witz I know, but I do not remember that I made any such full statement as that. Perhaps I have gotten the wording wrong. Q. Will you tell us what your recollection is of such a conversation with Mr. Horowitz? A. If I said anything of the sort I said I thought it had some influence. Q. What is that? A. If I said anything of that sort — I may have said, — Q. Said anything of what sort? A. Of the kind you are asking me. Q. Is it your recollection that you did say something of that kind? A. Very likely. Q. If you did, if it is true that you did, very 35 likely it was because you believed it, is not that so? A. Yes, I think it had influence. By Mr. Mayer: Q. After those compositions were read, and be- fore you left the room, did you have any con- versation with Mr. Schmalhausen on the ques- tion of loyalty? A. Not in that room; later. QoHow much later? Later in the day? A. Yes. Q. What was it he sai(^ to you on the question of loyalty? Mr. Smyth: This is by Mr. Schmalhausen? Mr. Mayer: Mr. Schmalhausen. Mr. Smyth: On which date? Mr. Mayer: Later on that day of October 22nd. The Witness: I have forgotten; we discussed generally the attitude of the boys toward dis- cussing the President, and I think I said that I did not think that Mr. Schmalhausen was very loyal, and he said that he was loyal to the truth rather than to persons. Q. Rather than to persons? A. Yes. Mr. Mayer: That is all. FRANCIS H. J. PAUL, called as a witness, be- ing duly sworn, testified as follows: Direct examination by Mr. Mayer: Q. Dr. Paul you are the Superintendent of the De Witt Clinton High School ? A. Yes, sir. Q. A boys' high school? A. A boys' high school. Q. What are the ages of the boys who attend that school? A. They run from fourteen to nineteen in the main. Q. From fourteen to nineteen? A. Fourteen to nineteen in the main. 36 Q. And the boys of Mr. Schmalhausen's class are about of what age? A. Seventeen. Q. Where does that school draw its pupils from in the City? A. All over Manhattan and the Bronx, mostly the upper east and lower east side. Q. Do you remember, Dr. Paul, on or about October 22nd, 1917, Miss Garrigues bringing to you compositions from the classroom presided over by Mr. Schmalhausen ? A. I do. Q. Amongst the compositions brought is that Exhibit No. 6 for identification one of them? A. It is. Q. Is that Exhibit No. 6 for identification, with the exception of the lead pencil comments noted on it in the exact state in which it was when it was presented to you by Miss Garrigues on that occasion? A. It is. Q. I>id you, subsequent to Miss Garrigues hand- ing this to you, have any conversation with Mr. Schmalhausen with reference to this Exhibit No. 6 for identification? A. I did. Q. What was said? A. Later in the week I sent for Mr. Schmalhausen and asked him if that assignment had been made by him. Q. I show you the assignment. First, break- ing in on that is Exhibit No. 5. What did you say to him about that? A. I asked him if he considered this a judicious and proper assign- ment. Q. Was that the identical paper that you had in your hand at the time? A. This is the paper. Q. What did he say? A. He said that he thought this was a proper assignment to be given a class at the De Witt Clinton High School at this time. Q. What conversation did you have then with reference to this Exliibit No. 6 for identification? 37 A. I had no conversation with him regarding this exhibit at that time. Q. At that time? Later on, did you have a conversation with him with regard to this Ex- hibit No. 6 for identification? A. That Exhibit No. 6 was presented to him. Q. Did you have a conversation with him later on? A. No. Q. Were you present when any conversation was had with reference to it? A. I was. Q. Where was it? A. There were two con- versations. Q. No, the first" one? A. The first one was in the evening night school office in the De Witt Clinton High School building. Q. Who were present on that occasion? A. Dr. Tildsley, Mr. Schmalhausen and myself. Q. Anybody else? A. Not on the first oc- casion, as I recollect. Q. Between whom was the conversation had with reference to this Exhibit 6? A. On thie first occasion? Q. Yes. A. Dr. Tildsley, Mr. Schmalhausen and I. Q. Whaty I mean, who did the talking, who was speaking on that occasion? A. Dr. Tildsley and Mr. Schmalhausen. I was merely a wit- ness. Q. Did you hear what Dr. Tildsley said to Mr. Schmalhausen with reference to this paper? A. I did. Q. What was it? A. He read the letter, the first page of the letter through to Mr. Schmal- hausen and asked him whether he considered that was the proper kind of a letter to be read in a classroom at this time. He said he had no objection. Q. What did Mr. Schmalhausen say? A. Mr. Schmalhausen replied that he saw nothing in 38 the letter to correct, that if the boy felt the sentiments which were expressed in the letter it was proper for him to express those senti- ments, and that while he might have made some corrections as to the organization or form of English in the letter, he would not have felt under any obligation to correct the sentiment of the letter. Q. Anything else on that occasion that you re- member? A. Yes, Dr. Tildsley asked him did he not think that the form of assignment was an improper one; did he not think' that the expres- sion "Write a letter to Woodrow Wilson" was improper; should he not have used some more honorable term or form of salutation to the President of the United States. Mr. Schmal- hausen replied that he did not see any particular reason why he should emphasize any form of salutation to the President of the United States any more than to any citizen, he mentioned John Brown or John Smith, I do not know which name, and Dr. Tildsley then asked him, "Do you think that you ought to inculcate a respect for the President per se?" and he said, "No," he felt that he was not under any obligation to inculcate instinctive respect, but it might be proper for him to inculcate reflective respect; that the Pres- ident of the United States should receive as much respect from a boy as he showed respect for the boy, as he, the President, shows respect for the boy. Q. Anything further on that subject that you remember? A. It is not JFresh in my mind at the present time. Q. Did Mr. Schmalhausen say on that occa- sion what he meant by reflective respect? A. He implied it by the remark that he would teach the boy to show as much respect for the Pres- ident as the President showed for the boy. 39 Q. Now, subsequent to November 1st, and No- vember 2nd, was there a further conversation between Dr. Tildsley and Mr. Schmalhaiusen in the Evening High School office with regard to this letter? A. There was. Q. What was the conversation on that occa- sion with regard to this paper? A. Dr. Tildsley showed him a letter on this occasion and said to him, "Of course, 1 have not shown you this full letter and I think you should read the com- plete letter." He was given the opportunity to become acquainted with the contents of the com- plete letter. Q. Did you see him read it? A. Yes. Q. What was then said to him by Dr. Tildsley? A. Among other things he asked, "Do you still believe that that letter may be read in a class- room to the boys?" He said, "Yes." He said, "Do you think that if this boy brought in an- other letter, showing the same sentiment at the end of a week it would be proper for you to have this boy read the second letter?" and he said, "Yes." He said, "Do you think that if this boy brought in that same type of letter, showing the same type of sentiment a third time in suc- cession, would it be proper for the boy to read it before the class?" and he said, "Yes." He sa!d something about there was no objection to it; the school was not a doll's house. Q. Perhaps I misled you into asking you where that second conversation took place. Was it had in the school, in the high school office, or in your office? A. The second conversation was had in my office.. Chairman Whalen: Who was present? Q. Who was present on the second occasion? A. On the second occasion, Mr. Schmalhausen, Dr. Tildsley, Mr. Anthony, Mr. Margolies was pres- ent, and myself. 40 Q. Who is Mr. Anthony? A. Mr. Anthony is the Assistant Principal in the school. Q. Arid who is the other gentleman? A. He is one of the clerks. Mr. Mayer: Now, I offer this Exhibit 6 for Identification in evidence. Mr. Smyth: With the pencil memorandum? Mr. Mayer: No, without the pencil memo- randum. I will have some testimony with regard to those later on. Chairman Whalen: Any objection, Mr. Smyth? Mr. Smyth: No. ^ Exhibit No. 6 for Identification was received in evidence and marked Exhibit No. 6 in evi- dence, and is as follows : "Herman, H. 5 Eng., 715. 1-3 Ridge St., New York, N. Y. To the Defender of Humanity and Cham- pion of Democracy, Woodrow Wilson: Undoubtedly the time will come when people not so ignorant and unappreciative as we are, will unanimously voice their approval of the work you are now engaged in — a work in which you have pledged all our lives, fortunes, homes and honor, with- out in the least consulting us, ignorant brutes that we are — so that those who arie so nobly sacrificing themselves for so righteous a cause may in the hereafter real- ize the fruits of their toil. In short, you are ready to slaughter us all in order that we may enjoy that in death which we are now lacking in life. But please, Your Excellency, do not deign even to listen to me; I am only of the 20th Century, while you are a Messiah in disguise, sent 41 to show us the path to virtue, righteous- ness and spiritual, glory. (The highly des- picable material glory is too low for us, and we gladly hurl it at those high priests of materialism in their Holy of Holies, which I need not tell you is Wall Street.) Therefore, my Most Exalted Ruler, peruse my worthless epistle with deepest scorn on your noble features, and immediately cast it into the fire; but please forget not to wash and rub your hands thoroughly, and for that purpose I recommend the sacred oil of the Standard Oil Company. When the Allies first declared war on the Central Powers, all were kept guessing as to the exact causes of it. Of course, the breaking of Belgium neutrality and the Allies' promise to protect her, was too weak a reason to the man not too influenced by the 'yellow' press to be able to use a little thinking power. No man with any brains whatsoever, would accept that as proof which has been proven to be empty, for would that have been the first time that England would have broken a contract, or France; had England or France been so pure and faultless until then. Yet, for lack of a better reason, this had to be of- fered. But as soon as Russia freed itself from its yoke and the U. S. entered the war, it took only a comparatively short time before the cry of a 'War for Democ- racy' and a similar war-yell of 'Down with Prussianism' began to permeate the al- ready polluted atmosphere of this nation. What mattered the petty Italian autocracy, and the exact facsimiles of the Russia of the past, Roumania & Servia. Certainly the entrance of Siam on the part of the 42 - Allies changed not the outlook, although Siam is the only complete autocracy in the world, including Germany. Pray, Your Highness, do not misunder- stand me — I do not sympathize with the autocratic Germany, and there is no one more than I who wants to see the com- plete obliteration of all Junkers and Pan- Germanists. But how is it that the U. S., a country far from democratic (and daily proving itself to be such) and England, the imperial and selfish (and we exclude all minor participants) undertake to slam democracy upon a nation whether it likes it or not? What unparalleled audacity to attempt to force 70,000,000 people to adopt a certain kind of government. If we mean their benefit, then the Germans surely know what they want and need us not. Kiss them not and bite them not. You don't seem to realize that you are simply embittering them against such audacious conduct. As far as I understand, we are for no in- demnities and no annexations — of course except a billion here, a billion there, Alsace- Lorraine to France, Trieste and the Isonzo region to Italy, and so forth. "Why is it that France, which has never returned willingly any territory acquired in her nu- merous wars should thus demand a prov- ince already a part of Germany for the past 47 years? And why are her allies so ready in backing her up? If this be the war's programme, then why throw dust into our eyes? 'Tis true we are only dust, but too much is too much. Finally, if our aim be the annihilation of Prussianism, then why in the name of Heaven have you 43 refused the offer made by Germany, which included the evacuation of Belgium, dis- armament of nations and freedom of the seas? Surely then your purpose is to get supreme domination and to crush Ger- many for no reason it seems, except a mad desire for murder, meanwhile making us the goats. But, my Most Venerable Lord, I fear I am tiring you, and I shudder to think that ^ y as result you may be delayed in your grand wholesale murder. There, • with the sin- cerest hopes that you will not take any- thing I have written to heart, I remain. Your most obedient and humble servant, HYMAN HERMAN." Mr. Mayer: On the margin of this letter you will find a memorandum in pencil. How did this memorandum come to be placed on that exhibit? A. At the close of the interview Dr. Tildsley— Q. This is on the 2nd of November? A. On the 2nd of November, Dr. Tildsley turned to Mr. Schmalhausen and said, "How would you correct this letter?" Mr. Schmalhausen asked time in which to make the corrections. Dr. Tildsley and I left the office and while we were gone Mr. Schmalhausen made these corrections. When we returned he handed the letter as it now is with the corrections to Dr. Tildsley, and he said, "Of course you understand that my corrections arc more extensive than they would ordinarily be." Mr. Mayer: Now, if it please your Honor, I think I had better read this letter because it is the fundamental of this case. Mr. Mayer reads Exhibit No. 6 to the Com- mittee. 44 By Mr. Mayer : Q. Were you present after Mr. Schmalhausen put these pencil notes on the paper? Mr. Smyth: May I read these pencil notes so that we can have the record complete? As it goes now there is only one side of it. Mr^ Mayer: Yes, you can read them. Cer- tainly, I withdraw my question. Mr. Smyth: To the salutation, "To the De- fender of Humanity and Champion of Democracy, Woodrow Wilson," Mr. Schmalhausen has noted, "wrong salutation." The letter goes on "Undoubtedly the time will come when people not so ignorant and unappre- ciative as we are will unanimously voice their approval of the work you are now engaged in, a work in which you have pledged all our lives, fortunes, homes and honor, without in the least consulting us, ignorant brutes that we are." To that Mr. Schmalhausen has commented, "exagger- ated, excessive, emotionalism." The letter goes on, "In short, you are ready to slaughter us all," and to that Mr. Schmalhausen has annotated, "Is there any sanity in this as- sertion ?" The next sentence that is criticised is, "The highly despicable material glory is too low for us, and we gladly hurl it at those high priests of materialism in their Holy of Holies, which I need not tell you is Wall Street." Here the comment is "very confused utterance." The next is, "Therefore, my Most Exalted Ruler, peruse my worthless epistle with deepest scorn on your noble features, and immediately cast it into the fire; but please forget not to wash and rub your hands thoroughly, and for that pur- pose I recommend the sacre,d oil of the Stand- ard Oil Company." The comment is, "Do you take these remarks seriously?" 45 From the letter I am reading now. "Of course, the breaking of Belgium's neutrality and the Allies' promise to protect her, was too weak a reaspn to the man not too influenced by the ■yellow' press to be able to use a little think- ing power." The comment is "Not a clear ref- erence." And to the next sentence the comment is "Not clear to me." To the next sentence the comment is "What?" The next sentence which reads "Down with Prussianism" that is a little bit involved: "Yet for lack of a better reason this had to be offered, but as soon as Russia freed itself from its yoke and the U. S. entered the war, it took only a comparatively short time before the cry of a 'War for .Democracy,' and a similar war yell of 'Down with Prussianism' began to permeate the already polluted atmosphere of this nation." The comment is "In what sense?" Again, the next one "What mattered the petty Italian autocracy and the exact facsimiles of the Russia of the past, Roumania and Servia." It says "In what sense?" Then the next comment is "clumsily worded." The same comment is made with regard to the next sentence "Sane attitude" and then with respect to the sentence "But how is it that the U. S. a country far from democratic (and daily proving itself to be such) and England, the imperial and selfish," and so on, he says "In what specific particulars?" He fur- ther says "word usage bad," as to "undertake to slam democracy," "word usage bad." The last letter reads this way: "Undertake to slam de- mocracy upon a nation whether it likes it or not." Comments on this whole subject by Mr. Schmalhausen we find "Recall President Wilson's differentiation between German gov- ernment and people." 46 Reading from the letter again, "What unparal- lelled audacily to attempt to force 70,000,000 people," that is included in the former comment, "to adopt a certain kind of government! If we mean their benefit, then the Germans surely know what they want and need us not. Kiss them not and bite them not. You don't seem to realize that you are simply embittering them against such audacious conduct." The comment is "Crude language" with regard to "Kiss them not and bite them not." In addition "Is that so?" in regard to "Germans surely Ipiow what they want and need us not." Reading from the letter "as far as I under- stand, we are for no indemnities and no annexa- tions. Of course, except a billion here and a billion there." The cpmment is "Not accurate- ly presented." Then going on: "Alsace-Lorraine to France, Trieste and the Isonzo region to Italy and so forth." The comment is "Be more specific." Reading from the letter again: "Why is it that France which has never returned willingly any territory j acquired An her numerous wars should thus demand a province already a part of Germany for the past 47 years." The comment is "Foolish attitude historically." Then there is a comment on the 47 years, referring to its being historically inaccurate. I suppose the word is historically. Reading from the letter again," 'Tis trui^ we are only dust, but too much is too much." The comment is "Irrelevant." Again reading from the letter: "Finally, if our aim be the annihilation of Prussianism then why in the name of Heaven have you refused the offer made by Germany which included the evacuation of Belgium, disarmament of nations and freedom of the seas." The comment is "When? Do you beli<'ve in its sincerity?" 47 Again reading from the letter: "Surely then, your purpose is to get supreme domination and to crush Germany for no reason it seems except a mad desire for murder, mean-vshile making us the goats." The comment is "For a thoughtful student this statement sounds irrational." Again reading from the letter: "But, My Most Venerable Lord, I fear I am tiring you, and I shudder to think that as a result you may be delayed in your grand wholesale murder. There- fore, with the sincere hope that you will not take anything I have written to heart, I re- main. Your most obedient and humble servant, Hyman Herman." The comment is "Sorry to find this unintelli- gent comment in your work. Why did you write this?" The comment is "For a thoughtful student this statement sounds irrational, sorry to find this unintelligent comment in . your work, why did you write this?" By Mr. Mayer: Q. On the occasion when you had the conversa- tion with Miss Garrigues about going to Mr. Schmalhausen's classroom with regard to these compositions under this assignment, what was it that you said to_her? A. If I recollect distinct- ly I said, "This thing has gone too far, it will be necessary for me to report this," and "I must ask you to give me a written report of your observations in the classroom when this letter was presented." Q. Did you on that occasion say anything about "Now I have got him," or anything of that kind? A. Absolutely not. Mr. Mayer: That is all. Cross examination by Mr. Smyth : Q. Then you are at variance entirely with Miss Garrigues? A. On that statement. 48 Q. She says that you said, "Now, iVe got him." Did you not say that? A. I regret that I must remain at variance with Miss Garrigues. Q. You have always known her as a lady of absolute veracity, have you not? A. Yes. Q. Can you imagine how she could make such a mistake as that? A. I can only— the only solution I can get would be from the words of your client commenting on Miss Garrigues in the room at the time when bespoke of her as an emotionally energized lady on occasion. Q. Do you think that is any answer to my question? A. I can find no other. Q. Do you specifically remtember that you used that language you said you used? A. Quite specifically, Mr. Smyth. Q. How do you remember that language? A. I cannot quite catch your point. Q. Why is it that you recollect it precisely? A. I do not remerriber every word in the sen- tence now, Mr. Smyth. Q. Was your comment at that time something that was sufficiently impressive for you now to recollect what it was? A. Yes, I think so. Q. If you had used the words, "Now, I've got him"? A. That would have been impressive and I certainly would have remembered it. Q. You would have remembered that? A. Yes. Q. If Miss Garrigues says she remembers it, is not it something that passes your comprehen- sion that you have forgotten it? A. It might pass my comprehension that anyone else would accuse me of it. Q. You have had some conversation with Dr. Tildsley with regard to Mr. Schmalhausen, and the other gentlemen who were instrumental in framing the resolution, or were about to frame a resolution at a meeting which was just then to be had with reference to .strictures on Mr. 49 Whalen? A. It would be impossible for me to have had that, Mr. Smyth, because this conversa- tion which Miss Garrigues refers to occurred on October 22nd; the hearing before the High School Committee was held October 22nd; the resolu- tions are of the date of October 24th. Q. But that subject was up and you knew it was going to be up before you had sent Miss Garrigues to the classroom; is not that so? A. I did not know that Mr. Schmalhausen had anything to do with it at all. Q. Did you not know that Mr. Schmalhausen was among those who were agitating condemna- tion of the action of those members who had been instrumental in lengthening the school hours? A. My recollection is that for the first time I knew who wer.e instrumental in any such agitation was on the afternoon of the 22nd, late in the afternoon. Q. Is it not rather singular that you happened to light on the very day that this matter was coming up for your investigation of Mr. Schmal- hausen, who was one of those who worded this resolution? A. It is not that. I did not light on it on that day. The matter was brought to my attention on October 19th. Q. What was it they brought to your attention on the 19th? A. The matter of this assign- ment. Q. Brought to your attention by whom? A. By a teacher in the De Witt Clinton High School. Q. Who is the teacher? A. Aaron I. Dotey. Q. That was on the 19th, you say? A. On the 19th. Q. At that time, did you know that the Teachers' Council had taken up this subject of protesting against the action of Mr. Whalen? A. I do not recollect any such knowledge ^t that time. 50 Q. You do not? A. No, sir. I knew I was to be here on October 22nd, but I did not know that there was to be any action on the part of the Teachers' Council of the De Witt Clinton High School. Q. Did you not know that Mr. Schmalhausen had already been appointed by the Teachers' Council to get up a protest against the lengthen- ing of the day? A. My recollection of the first time that I knew he had anything to do with the protest as to the lengthened day was in this room on the afternoon of the 22nd, and I was requested to be here, by, I think, the Chairman of the School Committee. I was coming in my capacity as one of the principals who was re- quired to be here, because the boys of the school were to be heard from. Chairman Whalen: If it will help you at all, the public hearing which we gave to the boys and teachers, and in which Dr. Paul was pres- ent, was on the afternoon of the 22nd of Octo- ber. Mr. Smyth: Yes, I understand. Chairman Whalen: That was held here in this room. Mr. Smyth: I understood the actual meeting was held here in the' afternoon, but Mr. Schmal- hausen had already been selected to present the matter of protest against the lengthened day before that. That is the point, that he was singled out by Dr. Paul because of that fact, and his recollection of that may be as faulty as his recollection as to what he said, and Miss Gar- rigues says he said. By Mr. Smyth : Q. Now, with reference to this Herman letter, or Herman essay, you did not show Mr. Schmal- hausen that letter on the occasion of your first 51 talk, did you? A. My talk with him? No, sir. Q. Why did you not? A. The letter was not in my possession at that time. Q. When was the occasion of your first inter- view with Mr. Schmalhausen ? A. It was in the week beginning October 22nd, I think October 23rd, I put a card in his box, asking him to come to see me in my office as soon as it was con- venient for him to do so, and he, I think, — I tliink a day or two went by before he came, and coming in toward noon on the latter date, toward the end of the week, I found a memoran- dum on my desk to the effect that he had tried several times to meet me, but had been unable to do so, so I sent for him at that moment. Q. That was what day? A. I cannot tell you the exact date, but it was toward the end of the week. Q. It was probably Friday, October 26th, was it not? A. It might have been. Q. You had the Herman epistle then, did you? A. I did not. Q. You did not have it then? A. No, sir, Q. When did you have it? When was it handed to you? A. It was handed to me by Miss Garrigues on October 22nd. Q. On October 22nd? A. On October 22nd. Q. Then you had the Herman letter? A. At that time; yes. Q. At the time Miss Garrigues handed it to you on the 22nd? A. Quite correct. Q. Then you had it at the time that you had your first interview with Mr. Schmalhausen? A. I did not. Q. What had you done with it? A. I had turned it over to Superintendent Tildsley. Q. Was Superintendent Tildsley present at your interview with Mr. Schmalhausen on the 26th of October? A- He was not, 52 Q. When did you get that Hennan letter back from Mr. Tildsley? A. Mr. Tildsley brought it back to the school on October 31st, I think. Q. When did you see Mr. Schmalhausen? A. The latter part of the preceding week. Q. When did you first see Schmalhausen after you obtained possession of that letter? A. The latter part of that week. Q. And that was when? A. You have sug- gested October 26th. I am not positive of that. Q. You said at that time you did not have the letter before you; you had turned it ov.er to Dr. Tildsley? A. Quite correct. I have not said I had the letter still. Q. When did you first see .Mr. Schmalhausen after Dr. Tildsley had returned that letter to you? A. Dr. Tildsley presented the letter to Mr. Schmalhausen in my presence on October 31st, that is the first time I saw the letter after it went into Dr. Tildsley's hands. Q. Was it returned to Mr. Schmalhausen with the opportunity to read it through on that oc- casion?, A. On the first occasion only the first page was read. Q. Who reard the first page? A. Dr. Tildsley, as I recollect it. Q. Why was not Mr. Schmalhausen not allowed to read the letter? A. You will have to ask Dr. Tildsley. Q. There was no statement made of any rea- son? A. There was no statement made of the reason for withholding the letter. Q. When the letter was finally shown to Mr. Schmalhausen in its entirety you knew then that that was the first time that Mr. Schmalhausen had ever seen the Herman epistle? A. Quite correct. Q. He sat down and made these comments? A No, 53 Q. Where did he write these annotations? A. He did not sit down and make those comments when he got the letter. Q. Do you know where it was that he made those comments? A. Yes, he made those com- ments in the office, the High School office at the extreme end of the interview, at the close of the interview. Q. That was when the letter was handed to him for the purpose of criticising? A. That was wh,en Dr. Tildsley, after hearing from Mr. Schmalhausen that the sentiments might be offered three times in succession, said to him, "Well, what changes would you make or what criticisms would you offer?" That was at the close of the interview. Q. Then he put his criticisms in writing? A. He put them on the letter as they are now. Q .Do you say that the written criticisms differ from his oral criticism? A. I feel that they did. Q. What? A. I feel that they do, Q. The written criticisms, of course, are not open to any question of faulty recollection, are they? A. No. Q. What? A. No. Q. They were made right there at that time, at that interview, were they not? A. They were. Q. It is rather singular, is it not, that at the same interview he is reported to have made verbal criticisms which do not compare at all with his written criticisms? A. I beg your par- don, I did not say he made verbal criticisms. Q. Did he say that he approved of the letter? A. I say that he said — Q. No, answer that. A. In effect he approved of the letter's sentiments. Q. Did he say "I approve of the sentiments of that letter"? A. He said that "I would be per- fectly satisfied — -" 54 Q. No, answer that. A. Did he say personally whether he approved of the sentiments of the letter? Q. Yes. A. I cannot recollect that he did. Q. His written comment was disapproval, was it not? A. His written comment was disap- proval of the form and detail. Q. Do you consider it a disapproval of form and detail when he says that the writer was ir- rational and insane, and he finally ends up by asking him "Why did he write this." Do you consider that a matter of form or a matter of substance? A. I feel that — Q. Answer that. A. That is a suggestion that the substance is in question. Q. The substance is in question? A. Yes. Q. Then we have it that when we get something that we can absolutely put our finger on, the writing of Mr. Schmalhausen, that he disapproves of the substance of the letter, and it is only your recollection which may be faulty as to what his oral comments were. Is that so? A. He made no — Q. Is that so, as I put it? A. He made no oral comments. I suggest that you frame it without the suggestion oral comments. Q. He made no oral comments? A. Verbal corrections. Q. Didn't you say a little while ago that his oral comments were affirming the sentiments of the letter? ,A. I said that he said that with- out change of sentiment he would permit that letter to be read three times in succession, or one like it. Q. Are you entirely correct about that? A. Absolutely. Q. Is not what occurred on that occasion in this wise : Did not he suggest that Mr. Herman was a boy of a good deal of intelligence, and that if the letter were properly criticised it would be a lesson to him which would make it permissible to let him write another essay, because that essay would be written in the light of criticism? A. He said nothing of the kind, sir. Q. Are you absolutely positive; do you say that positively? A. Positively. I will tell you why I am positive of that. Q. Unless it was something that was said I ob- ject to that, to your opinion. A. It was something that was said. Q. What did you say? A. He was asked, "Would you consider a boy writing such a letter and continuing to write such letters worthy of a diploma from this school?" and he said "Yes." Q. Can you reconcile that statement of his with what he wrote right at the same interview, that the boy was irrational and insane in writing such a letter as that? A. Well— ' Q. What? A. I cannot undertake the obliga- tion of reconciling his acts. Q. Is it not true, Dr. Paul, that when you asked the question, "What did he think of the rights of that boy to receive a diploma from this high school," at that time you were not — was not that a question by Dr. Tildsley? A. I think that was Dr. Tildsley's question. Q. It was not yours at all? A. No, sir. Q. At that time there was no specific reference made to the boy Herman, was there? A. Certain- ly, the boy in question was Herman. Q. Did not Mr. Schmalhausen reply in sub- stance, that I suggest we find out as much as we can find about that boy's previous record, from his several teachers, and the markings of his previous several terms all go to show that he is an unsatisfactory student, a fellow who has not any capacity for showing respect or courtesy, then I should say he deserves to be dealt with rather 56 seriously, though at this moment I am not pre- pared to say what specific punishment be meted out? A. I remember no such detailed or lengthy answer. Q. Did he say in substance or effect, that? A No, sir. Q. Did he say nothing of what I have read? , A. No, sir. Q. You deny that categorically? A. I deny it categorically. He said, "I would be in favor of giving him his diploma," or words to that effect. Q. I heard you. You have said that several times. Did he not say that in fairness to the boy you should consult all his teachers and all his past reqords, and that you must remember that the boy may have twenty or thirty or forty years more in which to develop intellectually and spiritually; cannot we affor-d to assume that he will improve in these respects, which you find fault with? A. I do not recollect any such statement. Q. Do you now deny that he made any such statement as that? A. I deny it. Mr. Mayer: Will you speak loud so all the Committee may hear you? Q. Do you know the record that this boy Herman had up to that time according to the school? A. No. Q. Have you looked it up at all? A. Yes. Q. And what have you found his record to be? A. It is a good record. Q. ;A good record in all respects? A. In most of them. I have his record card here. Q. Will you produce it? A. There it is. Mr. Smyth: I offer in evidence the record of Hyman Herman. } Mr. Mayer: No objection. The paper was received in evidence and marked Exhibit A of this date. 57 By Mr. Smyth: Q. This record of Hyman Herman, indicates an exceedingly inteUigent chap, does it not; for his age it is a pretty good record? A. It does. Q. And it indicates that with an intellect such as he apparently had, that with proper training and proper comment, pointing out errors, that he would be an apt pupil? A. It does show that if the teacher used due influence on thie boy he would be both an apt pupil and a splendid citizen. Q.. So that if this essay had been presented before that in class to Mr. Schmalhausen and he had had the opportunity of criticising, as he had according to his marginal notations, you would have great hopes that the next time the boy was called upon to address that particular subject it would be in an entirely different vein, would you not? A. I have not only hope but knowledge that the boy has under the control and direction of another teacher seen the mistake that he made in writing that letter. Q. Did this other teacher follow the annota- tions of Mr. Schmalhausen in criticising that essay? A. The other teacher did not discuss that essay per se. Q. I see. A. The other teacher presented to the boy a better understanding of the German Government, according to the boy's statement to me. Q. No opportunity was given to Mr. Schmal- hausen to present any id^a of the German Govern- ment to this boy, was there? A. Not as I know of. Q. None that you know of. In fact he was suspended before there was any opportunity for him to do anything about the matter further than write the annotations in your office? What? A. That is correct. 58 Q. Have you investigated the list of assignments given to Mr. Schmalliausen's class irom the open- ing of the school to the 12th of November? Mr. Mayer: I object to that as immaterial and irrelevant. A. Yes. Mr. Smyth: It is to show that this is the first political assignment that there had been. The Witness : Mr. Schmalhausen — Chairman Whalen: Wait, wait. Mr. Mayer: Wait. Chairman Whalen: If you go into that there will be no end to it. Mr. Smyth: I do not think so. This gentle- man is accused apparently of trying to conduct his class in such a way that lack of patriotism was taught. I wish to show — Chairman Whalen: It is shown by your letter which you have read. Mr. Smyth : I wish to show that all the assign- ments from the time the school was opened to the time of the writing of the letter and beyond were assignments which had to do with literary subjects and none of them were political. Chairman Whalen: He is only accused of giv- ing out this assignment. No, he either did or he did not. Mr. Smyth: Accused of giving out this assign- ment? Mr. Mayer : And failing to make proper correc- tions of the letter. Chairman Whalen: That is it. Mr. Smyth: My friend says "failing to make proper corrections." I do not see how that can be included' in that, considering that the letter was never given to Mr. Schmalhausen under cir- cumstances where he was permitted to correct it. Chaiman Whalen : You brought that out. Mr. Mclnlyrc: You said he made more ex- 59 tensive corrections on that letter in the office than he would have made in the classroom. Mr. Mayer: We will bring that out. Chairman Whalen: Mr. Smyth has brought that out. Mr. Smyth: What? Chairman Whalen: You brought out the fact that he made these notes on the letter, and the letter and comments speak for themselves. Mr. Mclntyre: May I interrupt at this point, Mr. Chairman? I think it ought to be pointed out to the Committee that the essence of the criti- cism made of the action of- Mr. Schmalhausen is that he failed to make such criticism of the contents and the substance and the spirit of that letter as would lead that boy to see that he was wrong to write such a letter. Mr. Smyth: 1 am perfectly willing to meet that, and say that the answer is contained in the written annotations contained in the letter. If that is all there is of this inquiry we ought to stop right here. Mr. Mclntyre: No, the letter speaks for itself. Chairman Whalen : We had better not get into any argument now. We are taking proof. After the proof is all in and the case is closed we will give you an opportunity of summing it up. Mr. Mclntyre: I did not mean to interrupt, and I thought that perhaps we might get back to the issue again,. Chairman Whalen: Have you finished Mr. Smyth? By Mr. Smyth : Q. The idea of getting these written criticisms from Mr. Schmalhausen was to obtain from him what his idea of the letter was, was it not? A. Dr. Tildsley referred to that. Q. You expressed no idea? A. I have expressed only the statement that Dr. Tildsley — 60 Q. Unless it was said to Mr. Schmalhausen I have not asked for it. If it was said in Mr. Schmalhausen's presence you may state it? A. It was stated in Mr. Schmalhausen's presence. Q. What was it Dr. Tildsley said in Mr. Schmal- hausen's presence? A. "What criticisms would you offer to this letter." Q. Is that all he said? A. That is practically all I recollect. Q. Then he sat down and wrote these criticisms which havt been read? A. He asked for time and Dr. Tildsley said "You may have it." Dr. Tildsley and I left the room and when we came back he offered this paper to Dr. Tildsley with these marginal notes. Q. How long were you out of the room? A. About fifteen minutes. Mr. Smyth: That is all. Redirect examination by Mr. Mayer: Q. Dr. Paul, you have read these pencil com- ments of Mr. Schmalhausen? A. I have not. Q. Dr. Paul, during the conversation that you had or that Dr. Tildsley had with Mr. Schmal- hausen in your presence, did Mr. Schmalhausen at any time condemn the contents and substance of that letter? A. He did not. Mr. Smyth: I object to that. The annota- tions speak for themselves. Chairman Whalen: Yes. Mr. Smyth: 1 ask that the answer be stricken out. Chairman Whalen: It is not important. The letter speaks for itself. Mr. Mayer: Mr. Smyth, as I remember, has asked some questions to try to show that Mr. Schmalhausen did not comment on the letter in any way except through his criticisms. Now, I want to know did he comment on that letter oral- ly, by condemning its substance. 61 Chairman Whalen: He answered the question, and it is of no importance. The letter speaks for itself. The next witness. Mr. Mayer: Dr. Tildsley. . JOHN L. TILDSLEY, called as a witness, be- ing duly sworn, testified as follows: Direct examination by Mr. Mayer: Q. Dr. Tildsley, are you one of the Superin- tendents of Public Instruction? A. I am an Associate Superintendent. Q. Does DeWitt Clinton High School come under your supervision? A. It does; I have charge of all the high schools. Q. Do you remember in or about the latter part of October, 1917, receiving from Dr. Paul, the principal of DeWitt Clinton High School, this letter marked Exhibit 6 and this assignment marked Exhibit 5? A. Yes; he brought it to my office just before we came down to the hear- ing on the high school students on the afternoon of October 22nd, and said "This is a matter that I think requires your attention." / Q. Then what did you do with those papers? A. I put them away in my desk at that time and told him that 1 would come over and look into the matter as soon as I possibly could. Q. And then what occurred? A. Immediately following we had the hearing that afternoon, and then there was a strike of the high school boys, and the remainder of that week was taken up with interviews with boys, finding out why they struck, and following that action in the DeWitt Clinton High School, arid the High School of Commerce, so it was not until October 31st, I was able to do anything in the matter. I put the letter in my pocket on October 31st, rather the night before, and came down to DeWitt Clinton High School on the morning of October 31st. i',2 Q. Then what did you do at De Witt Clinton High School on that day and where was it done, and who were present? A. I came there and told Mr. Paul that I had two different matters which I wished to look into; one was the ques- tion of the resolutions passed in the name of the Teachers' Council and another one was the matter of this letter which was written in Mr. Schmalhausen's class. Q. Coming down to the letter, where was that taken up in the school? A. That was taken up in the evening school office. Q. Who were present on that occasion? A. Dr. Paul. Q. And was Mr. Schmalhausen ? A. Mr. Schmalhausen ; yes. Q. Now, tpU us, Dr. Tildsley, as near as you can remember, the conversation with regard to this letter which you had with Mr. Schmalhausen in Dr. Paul's presence on that occasion? ^. May I say that the interview did not start with the discussion of this, letter. There were two things that I wanted to find out about, and I think it might clear up things for me to state that if you are willing. Q. Was Mr. Schmalhausen present? A. Mr. Schmalhausen was present. Q. Tell the conversation as it actually occurred? A. Going back to October 31st, the first day I appeared there, Mr. Samuel Schmalhausen was one of the men I wished to see, but he came in about half past, two or three in the afternoon and asked if he could as well see me another day, because I think he had an appointment and I said "No hurry. It will do as well the next day." Q. That was the 31st of October? A. That was the 31st of October. So I came the next day. On the 1st of November, and Mr. Schmalhausen 63 was called in the office and we began our inter- view first by taking up the question of the resolu- tions. I wanted to find out why they were passed, and what the significance was. After we had dis- cussed them at some length it brought up the whole matter of what Mr. Schmalhausen thought of the form of democratic control in the schools. We thrashed that out quite fully, as to what they meant by the phrasing of the resolution. Having finished that subject I then took up the question of this letter, and I said, "I have here a letter, Mr. Schmalhausen, given to me by Dr. Paul, and I would like to read you some of it," and so I read him the first page and asked him what comment he had to make upon it, and he said he had no comment to make upon the substance of the first page; he might have made some mechanical mistakes. Then I asked him the question about the assignment, whether he thought it was a wise assignment, calling his at- tention especially to the term "frank," and that brought up the question of the nature of the assignment, its wisdom, and then I took up the question of the heading. Q. What did he say? A. He said he thought it was a proper assignment. The second point was the heading. The heading was "Woodrow Wilson," and I asked him whether that was a proper heading for a boy to use in addressing a letter to the President of the United States and he said he thought it was. I said "You mean then it would be proper for a boy to address the President of the United States just as he might address his next door neighbor, John Brown?" and he said he did think so. I said "Don't you think boys ought to be taught respect for the President of the United States?" and he said he did not believe it was the duty of the teacher to inculcate a respect for the President of the 64 United States as such. Then I asked him just what he meant by that, and he said he meant in- stinctive respect. . We discussed the difference between reflective respect and distinctive respect, and he did believe the boy should have reflective respect for the President of the United States. 1 asked him what he meant by that, and he said that in so far as the President of the United States, as an individual, was deserving of respect because of what the boy knew of his acts, and his life, the boy was bound to accord him respect, but he was not bound to accord respect to the President as such. Then I asked him whether he did not think it was the duty of a teacher in a public high school to inculcate in his pupils re- spect for the President of the United States as such, the Governor of the State as such, the Mayor of the City as such, and the President of the Board of Education as such, and he said it was not a duty of the teachers so to do. Q. Anything further? A. Those were the im- portant things brought out in that interview. It was a long interview, because we went quite thoroughly into this question of respect, and the duty of a teacher in these matters. Q. That was the substance? A. That was the substance of our interview the first day. By that time it was lunch time and we adjourned at that time. Q. Until when? A. I mean I excused Mr. Schmalhausen at that time, and I saw someone else, if I remember correctly afterward. I am not sure whether on that day. Then after thinking it over afterward I said "Mr. Schmalhausen" to myself, "did not have a chance to read that whole letter; I should have allowed him to read it", so the first thing the next morning, I asked to have Mr. Schmalhausen come to the ofTice, and then I said to Mr. Schmalhausen "I read you only the 65 first page. You have not read that letter. Will you kindly take that letter and read it through?" and he took the letter and read it. Chairman Whalen: Who was present the next day? By Mr. Mayer: Q. Who was present on the next occasion? A. There was present on the next occasion in Mr. Paul's office, Mr. Paul, Mr. Anthony, Mr. Mar- goli'es, who was sitting at a neighboring desk, and myself. These were the people who were actually present at the interview. The door was open and people came in and out, but they were not concerned in the affair. Q. Now, will you tell, as nearly as you can recolect it, the interview between yourself and Mr. SchmaUiausen on that occasion? A. On this occasion we renewed our discussion on this question of respect. Q. After he had read the letter or before? A. After he had read the letter, because the first thing when I came into the office, as I remem- ber it, I asked him to read the letter, because I felt that he could not discuss that letter unless he read it, and so he took his time and read the letter, and thfen we discussed the letter and I asked hina in this interview whether he would allow a boy to read this letter in class, and he said he would. Now, I said, "If the boy made no correction in the sentiment of this letter, would you allow him to read the same letter the next week," and he said "Yes." And I said "Would you allow him to read a similar letter the third week?" and he said "Yes." In other words I said "You would, allow such a boy to read such a let- ter again and again in class," and he said "Yes." Then he said "This is no doU'sp house; I be- lieve in free expression." I said, "Do you not 66 think the reading of such a letter would endanger the other boys in the class"? And he said he did not think it would. Then I asked him to take the letter aM make corrections as he would have made in the let- ter had it been handed in to him in the reg- ular course, and I walked out of the room with Dr. Paul so as to leave him there and he sat at the desk and wrote, and we were out of the room fifteen or twenty minutes, and then we came in and he handed it back to me with the statement, "You will understand that the cor- rections on this letter are much more minute than I would ordinarily have made", and I looked over the corrections on the letter, and the let- ter has been in the possession of the counsel ever since. Q. Until it was put in evidence here today? A. Yes. Q. Now, Dr. Tildsley, how long have you been connected with public instruction in the schools of the City of New York? A. This is my twen- tieth year. Q. During that time have you made an in- tipiate study of the principles and theories of teaching? A. I think I have. I have been in four ditt'erent high schools. Q. You have been a teacher in schools? A. I have been a teacher of Latin and History and Economics. Q. Do you remember the evidence of Dr. Paul that the boys in that school run in age from thir- teen to nineteen years? A. Yes, sir. Q. Have you observed the mental tendencies of young boys of that age? A. I have. Q. What in your opinion are the mental ten- dencies of boys of that age? Mr. Smyth: 'l object to that unless it is con- fined to the class that Mr. Schmalhausen had to do with. 67 Q. Confining yourself to boys under or about seventeen years of age^ iij Mr. Schmalhausen's class. Mr. Smyth: He has not yet said he observed the boys in Mr. Schmalhausen's class. A. I have not observed the boys in Mr. Schmal- hausen's class naturally. Q. Boys of seventeen years of age? A. I have. Q. Now, let m§ ask that question? (Question read) . Mr. Smyth: I make the same objection. Chairman Whalen: If they were seventeen years of age that answers. Mr. Smyth: No, unless it is shown that all boys of seventeen years of age are the same as boys of seventeen years of age in Mr. Schmal- hausen's class, certainly it would not be a com- petent question. Chairman "Whalen: That is what he is ask- ing about. Mr. Mayer: That is what I am asking about, boys of that age generally. Mr. Smyth: He says he has not observed these boys. It cannot be that you will take judicial notice of all boys of seventeen being the same whether they are identified or not. Ml*. Mayer : The witness is speaking as an expert who has made an intimate study of the theory and principles of teaching. Chairman Whalen : He can answer. He speaks generally of boys of seventeen years of age. Mr. Smyth: Is there any general tendency of all boys of seventeen years of age? Chairman Whalen : I do not know. ' Mr. Mayer: There is a general tendency un- less Mr. Smyth's boys' are abnormal. Mr. Smyth; There is one general teridency I have noticed, and that is that they like to en- joy themselves. Some are industrious and some 68 are not; some are good and some are bad; some are trutMul and some are not. I do not think there is any general tendency of boys of seventeen except generally that they ti-y to be good. Mr. Mayer: Intellectual tendency is what I am asking for. Mr. Smyth : I cannot see where we get any- where with any generalizations unless my client is identified with the boys whom Dr. Tildsley ob- served, and he can only do that by seeing them, and he says he has not seen them, that he has not observed these boys. Chairman Whalen: He says he is going to include yours. Mr. Smyth : He says he has not observed thpm. He has not observed Mr. Schmalhausen's boys. The Witness: Not these particular boys of Mr. Schmalhausen's. Mr. Mayer: Now, will the stenographer go back and ask that question again, having refer- ence to the boys in Mr. Schmalhausen's room? Mr. Smyth : Does your Honor overrule the ob- jection? Chairman Whalen: Yes, I overrule it. Mr. Smyth: Then I take an exception. By Mr. Mayer: Q. What has been your observation with re- gard to the mental tendencies of boys of the age of seventeen years old generally? Mr. Smyth: To that I make the same objec- tion as to its competency. Chairman Whalen: Objection overruled. Mr. Smyth: Exception. A. Tlie question, as the attorney states, is a very general question, and fill boys are not alike. Boys in different parts of the country are differ- ent, but I have been a very close observer of the type in DeWitt Clinton High School, because I 69 was in that school six years and I think I know that type of boy very well, and added to that I had to do with the same type of boy in the High School of Commerce for two years, and he has very much the same characteristics. At DeWitt Clinton High School the boys at the present time are probably eighty per cent, either the first or second generation, of foreign birth, and they have some very decided interests; they are very much interested in the social life and the political life of this city; they are exceedingly fond of dis- cussion, and they have developed a rather high degree of critical ability and critical tendency, and the only thing that they like more than any- thing else I should say, is a discussion on social, political and econoniical topics; they are more interested in that than they are in being good or even than they are in athletics. Q. Now, Dr. Tildsley, what effect on the minds of such boys as those that you have just spoken of, and particularly the boys of seventeen years of age as the boys who are in Mr. Schmalhausen's class, would such a letter as that read in class have? Mr. Smyth: That I object to, as immaterial, irrelevant and incompetent. Chairman Whalen : Objection overruled. Mr. Smyth: Exception. A. It is my opinion that' a letter such as that would have a very serious effect on the boys in that class. I believe that the evidence of the best authorities on psychology is to that effect. The boys of seventeen years of age in the DeWitt Clinton High School, as I have known them for a good many years now, at that particular age have a tendency to criticise governmental au- thority, and if a letter of that kind is read in class, unless it is most severely criticised by the teacher and condemned as being wrong, would 70 encourage other boys to write such letters. This is not a mere theorizing on my part, but I have talked with the boy who wrote this letter, namely, Hern;ian, who came to my office, and I asked him whether he would have written such a let- ter in the case of another teacher named Lough- lin, and he said he would not. Mr. Smyth: I object to this conversation. Chairman Whalen: Yes. Mr. Smyth: I move to strike it out. Chairman Whalen: Yes. • The Witness: This has a bearing. By Mr. Mayer: Q. What effect on such minds would such a letter as this have if read twice or three times without comment? A. I believe it would in- fluence — ■ Mr. Smyth: I object to that, if your Honor please. It is eminently unfair to say, "without comment," because here are the comments. Mr. Mayer: I will amend my question. Q. (Continued) : With such comments as these here which are placed in the margin? Chairman Whalen: With the comments. Mr. Mayer: With the comments. Mr. Smyth: That I object to as speculative. Chairman Whalen: There cannot be any ob- jection to that. Go ahead and answer. Mr. Smyth : Exception. A. I have read these comments very carefully three or four times on that letter, and in my judgment there is no condemnation of the writer of this letter as having done a seditious, immoral act. There is a technical criticism of certain phrases; he calls attention to the fact that cer- tain statements are exaggerated. In one place he says the particular statement in which the President is called a murderer is an insane state- 71 ment, but nowhere is there any sta[tement that the act of the boy in writing the letter is altogether an immoral act. There is not a single sign of moral abhorrence on the part of the teacher who criticised that paper, nor is there any indica- tion to the boy that he has done anything es- sentially wrong. The criticism is for the most part a technical criticism. In my judgment a letter of that kind should not have been criticised in detail at all. The teacher could have seen at the first glance the spirit of the boy and at- titude of the boy, and should have refused to accept such a letter at all, and should have simply written on it a general criticishi that this letter shows ^n absolutely wrong attitude on the part of the boy, that it is essentially seditious and immoral, and then he should have called the boy into his presence and explained that to him and convinced him of that fact. Q. Now, Dr. Tildsley, you say that such a let- ter criticised as this letter has been if read repeatedly in the class would have a bad effect upon the minds of the students of that class? Mr. Smyth: Same objection. Chairman Whalen: Yes, he has said that. A. Most decidedly.' Mr. Mayer: That is all. Cross examination by Mr. Smyth: Q. Do you not think it is general criticism where in one comment he says: "For a thoughtful student this statement sounds irrational," and in another "That it is insane," and finally at the end of the letter he asks: "Why did you write this?" Is not that, even from those few com- ments I have read, does not that indicate that was in general condemnation of the letter? A. No, sir. Q. It does not? A. No, sir. 72 Q. You would not admit anything was a gen- eral condemnation would you? A. I would. Q. You* are prejudiced anyway against Mr. Schmalhausen are you not? A. I am not, not in the sense you ask the question. Q. Did you not at one time admit to a certain gentleman that this boy you were convinced did not mean what he said; that he had picked up these phrases somewhere in some lurid journal? A. I have no recollection of such an admission. Q. Did you ever state that to Mr. JTablonower? A. I have no recollection of whether I did or did not. Q. You would not deny that you did, wbuld you? A. I will not deny it; I have no recollection whatever of the conversation. Q. Speaking of your own record, Dr. Tildsley, do you know Mr. Schmalhausen's record in the school? A. I know of his recbrd when I was the principal of that school. Mr. Smyth: I suppose the committee will take notice of its own records of the Board of Education. Chairman Whalen: Yes. Q. When you were called upon to give any report on Mr. Schmalhausen's record your re- port was always in his favor, was it not? A. Yes, on the whole it always was. Q. For instance you wrote on one occasion, December 22, 1914, did you not: "Mr. Schmal- hausen is scholarly, energetic, persistent, with a great enthusiasm for boys, and for teaching, his ideals are high, and he has the missionary spirit, he is a valuable teacher, if not always tactful"; do you remember writing that? A. Yes, sir, I remember that; Q. That you believed to be true at that time? A. Yes, sir. Mr. Smyth: I will now offer all the records 73 of the Board of Education with reference to Mr. ' Schmalhausen. Chairman Whalen: All right. Mr. Smyth: Whether made by Dr. Tildsley or by whomsoever made. Chairman Whalen: Very well, Dr. Paul? Mr. Smyth: Dr. Paul or whoever made them. By Mr. Smyth: Q. When you had the first interview with Mr. Schmalhausen do you recollect the opening topic of your interview? A. The opening topic of our first interview was the discussion of the resolu- tion passed by the Teachers' Council. Q. Why was that particular topic brought up first? A. Because Mr. Schmalhausen was, if I am not mistaken, a member of the Teachers' Council of that school, and I interviewed first Mr. Pickelsky, the Chairman of the Council, and Mr. Pickelsky told me that Mr. Schneer handed him the resolution, and so I interviewed Mr. Schneer and then afterwards several members of the Council. I told you I had two aims in going to that school. Q. You were at the time engaged in trying to fasten responsibility for the resolution that had been passed on the evening of the 22nd of Oc- tober when you had those interviews with Mr. Schmalhausen? A. I was trying to find out what was meant by the resolutions and why they were passed. Q. You were also trying to find out who had been instrumental in drawing them up and who had presented them? A. I asked those ques- tions; yes, sir. Q. Those were the first questions you asked? A. Not the first questions. Q. They were among the first? A. Among the first; yes, sir. 74 Q. They were before you came to the Herman matter at all? A. We had finished this matter be- fore we took the Herman matter up. Q. Who had asked you to inquire as to the authorship of the resolution and who acted in passing that resolution? A. Nobody had asked me. Q. Was it on your own initiative? A. It was on my own initiative because it lay within the sphere of my duty. Q. Did you report the result of that interview? A. I have made no formal report of that inter- view to anyone yet because I have not finished with the matter. Q. To whom did you make any informal or any preliminary report, or to whom did you tell what the result of your conversation was? A. I talked with the Board of Superintendents about it. Q. Who else? A. I do not remember; I talked to President Willcox — I do not remember whether I talked to President Willcox before or after I had made the investigation, but I have not made any report on that investigation as yet. Q. You have spoken to Chairman Whalen about it? A. Probably I have; yes, sir. Q. Probably? Have you no recollection about it? A. I have no recollection of having made any formal report. Q. I did not ask you for any formal report. Chairman Whalen: I can say that to you, he has not done so lo me. Mr. Smyth: I did not say he had made any report. Chairman Whalen: He has not discussed it with me. The Witness: I have made no report of any kind to anyone. Mr. Smyth: Do you mean he has not spoken to you, Mr. Chairman, about it? 75 Chairman Whalen: No. Mr. Smyt^: Given no information at all. Chairman Whalen: Not about the resolution. Mr. Smyth : About Mr. Schmalhausen's activity in the matter of the resolution. The Witness: I do not believe that Mr. Schmalhausen's activity in the matter of these resolutions has ever been a subject of con- versation between Mr. Whalen and myself. In fact I do not know what Mr. Schmalhausen's part in these resolutions was myself. By Mr. Smyth: Q. Was not that the first question you asked him? A. It was not the first question I asked him. Q. What? A. It was not the first question I asked him, and I do not know what Mr. Schmal- hausen's part was now. Q. Did not you ask Mr. Schmalhausen whether he wrote those resolutions? A. I did. Q. That was the first question you asked him? A. It was not the first questipn I asked him. Q. The second or third or somewhere along there, after saying "How do you do"? A. I do not know whether Mr. Schmalhausen wrote the resolutions or not. Q. You asked him didn't you? A. I did, sir. Q. Didn't you get a reply? A. I do not re- member what his reply was now, I do not know whether he wrote those resolutions. Q. That was one of the ^important things you were inquiring about? A. It was not the most important. Q. I did not say the most important, one of the important things? A. It was not the most im- portant, or one of the most important who wrote the resolutions. Q. What was the importance of asking who 76 wrote that resolution? A. I wanted to find out how that resolution came into being. Q. Did you ask him to find out? A. I do not believe that I found that out, who wrote it. Q. Did he not reply to you? A. I do not re- member. Q. If he had refused to reply surely you would remember that? A. I do not remember whether he refused to reply; I do not think he refused to reply, but at the same time I do not know who drew up these resolutions. Q. Is it not singular that your memory is not clear? A. It may be singular, but that is the fact. Q. You knew what I was going to ask you? A. I say this may be singular, but the fact is that I do not know who drew up these resolutions. Q. What was I going to ask you? A. I do not know. . Q. Are you as careful about report conversa- tions as you are in answering questions now? Have you got any clear recollection of these con- versations? A. I have of many things. Q. Can not you tell us the very first thing of the conversation, or the very first inquiry you made? A. No, I cannot; the reason is I have in- terviewed forty different people. The matter of this letter was much more important than Mr. Schmalhausen's connection with the resolution. I do not remember whether he made an answer to that specific question. Q. I suppose the reason that the Herman let- ter was much more important than any other is the reason that you asked about the resolution first, and did not ask about the Herman letter first; is that it? A. I asked about the resolution first because I was getting that out of the way, and the important thing in my mind was the Herman letter, and Mr. Schmalhausen's ideas. 77 Q. I see. A. I found out there were one hun- dred af that meeting and that no record had been kept of the attendance during the meeting; there- fore it was immaterial as to who tlie specific peo- ple were. Q. Would it refresh your recollection as to what Mr. Schmalhausen replied to you when you asked, "Did you write that?" if I told you that he did write it? A. It would not refresh my recollection. Q. You still say that you did not find out at the beginning that you had, or to use a phrase, the phrase of Dr. Paul, "1 have got him, the man who wrote the resolution" and then you went to the Herman matter? A. It wo^ld not refresh my recollection to the slightest degree if you would make that statement. Q. Do you deny that he admitted to you that he wrote the resolution? A. I do not deny it. I do not remember. Q. At any rate, after having brushed aside that preliminary matter you went to the Herman let- ter? A. Yes, sir. Q. You only showed him part of the Herman letter at that time? A. I did not show it to him. I read it to him. Q. You read him what? A. I read him the first page. Q. Why did you not show him the other pages? A. I read him the first page to get his reaction on the address and the general attitude of the boy in that letter. ' Q. That is why you read the first page? A. Yes. Q. My question is why, you did not read the rest of it. A. The letter was a long letter and I did not take the time to read it. Q. Was not it important? A. It was. Q. It was important? A. It was important, as 78 was shown by the fact that I came the next morn- ing and had him read it himself. Q. Were you not ti-ying to conceal the whole letter so as to get him to make a comment at the beginning which would perhaps seem peculiar if he had not read the whole letter? A. No, sir, be- cause if I had been trying to catch the man I would have had him read the whole letter, for the worst part of the letter is found on the last page. Q. Precisely. You wanted to get as favorable a comment as you could, reading the innocuous part, and then have that apply to the whole? A. the first page was not innocuous. Q. More innocuous than the rest of it? A. Yes, sir, in my judgment. Q. Now, you just admitted the worst part of the letter was at the end? A. The worst statement of the letter was at the end. , Q. You did not leave the worst part out to get as favorable a comment as you could for the first part, did you? A. No, sir. Q. You think you were entirely fair with Mr. Schmalhausen ? A. I think I was entirely fair; I was entirely fair. That was indicated by the fact that I came back the next morning and let him read the whole letter after that talk. Q. Was not that after somebody told you you had better do that? A. No, sir, it was not. I talked with nobody about the case. Q. Now, you started out on this inquiry with the thought in mind that the Herman letter was the most important thing that you had; is that right? A. No, sir. Q. What is the most important thing that you had? A. I had three things in mind in the whole inquiry. Do you refer to the inquiry into Mr. Schmalhausen's case? That Herman letter was 79 the most important matter in the case of Mr. Schmalhauseir, yes, sir. Q. Was the matter of the Teachers' Council resolutions one of the important things? A. That was a very important thing; yes, sir. Q. You took that up first? A. I took that up first; yes, sir. Q. With Mr. Pickelsky? A. Yes, sir. Q. And found that he had nothing to do with the resolution, did you not? A. I did not. I found that he presided at the meeting which passed the resolution. Q. He had nothing to do with the resolution, with its authorship? A. He had nothing to do with its authorship he said. Q. Nothing has been done with him. He still retains his position? A. He still retains his posi- tion. Q. The next man you saw was Kenneth W. Wright? A- No, sir, it was not. Q. Are you sure about that? A. I think the next man I saw was Mr. Schneer, if I am not mistaken. Q. Was it not Mr. Kenneth W. Wright? A. I think he was not the next man. I saw Mr. Kenneth Wright the same morning I saw Mr. Schmalhausen and Mr. Pickelsky. Q. You found out from Mr. Kenneth Wright that he did not vote for the resolution? A. Yes, sir, I did. Q. He has not been interfered with^ has he? A. He has not. Q. The next man you interviewed was Mr. Charles Ham? A. I think so. Q. You found he had voted for the resolution? A. Yes, sir. Q. He is transferred? A. He is. Q. And he is the first one. The next one you say Mr. Henry Schneer, was it not? A. I think so. 80 Q. You found that he had presented the resolu- tion, did you not? A. I was told by Mr. Pickel- sky he presented the resolution. Q. He has been suspended? A. He refused to answer whether he had or not, so I do not know. Q. He has been suspended? A. He has been suspended. Q. You know he did present the resolution? A. I was told so by Mr. Pickelsky. Q. The next man you saw was Mr. Schmal- hausen? A. We saw one or two other people, but Mr. Schmalhausen was the next man I had any considerable interview with. Q. You found that he wrote the resolution, did you not? A. I don't recollect now, whether he did or did not. Q. He has been suspended? A. He has been suspended; yes, sir. Q. Then you interviewed Mr. Mufspn, did you not? A. I interviewed Mr. Mufson, not immedi- ately, I believe, but within that — on the same day, that I interviewed Mr. Schmalhausen. Q. You found he had voted for the resolution? A. I did not find Mr. Mufson had voted for the resolution. Q. What did you find he had done? A. It will come out later, I believe. Q. Cannot you tell me? A. Mr. Mufson is on charges before this body. Q. All right. I am representing him. I will protect him. A. If the Chairman says I can an- swer that question I can answer it. Chairman Whalen: You had better wait until his case comes up. Mr. Smyth: I want to get the whole attitude of this gentleman. Chairman Whalen: You have got it. Mr. Smyth: I think I have and I want to complete it. 81 Mr. Mayer: I think this cross examination has been pursued far enough. Chairman Whalen: Do not waste any more time on that, Mr. Smyth. Mr. Smyth: All right, if your Honor is con- vinced as I am convinced, I will go to something else. Chairman Whalen: Take up something else, now. By Mr. Smyth: Q. Now, Dr. 'tildsley, this young man Herman is amenable to criticism; you have found that out have you not? A. Yes, sir. Q. And if he were given this subject to write on again, without hesitation, you would allow his paper to be read, would you not? A. No, sir, I would not. Q. Has not he shown an entire change since it has been explained to him? A. He has mani- fested an entire change by his work; yes. Q. Would you be afraid now, to let him write on this topic? A. I would not allow anybody to write on this topic in. school. Q. You would not allow anybody to write on the topic to frankly comment on the President's conduct of the war against Germany? A. I would not. Q. Do you read the newspapers? A. I do. Q. Do you find any frank comment on that sub- ject in patriotic newspapers? A. I do. Q. Do you think the boys of seventeen years of age are not fit to frankly comment on such a thing that we are all reading every day? A. They are not as fit as they will be later in life. Q. What age would you think that a growing youth or mature man should be to be permitted to frankly comment on the President's conduct of the war against Germany? A. The question in- 82 volved is not at what age a boy may do that, maybe, but at what age a boy in a school should be allowed to. Q. Well, answer the question I have asked if you can, if you cannot, say you cannot? A. I can- not answer that question. Q. You cannot answer? A. It depends upon the boy. Q. Do you mean to say by that, that some boys of seventeen could be entrusted to write on the subject? A. Some boys of seventeen certainly could be entrusted to write on that subject. Q. Is it your idea that to give such an assign- ment as was given here would tend to produce among the majority of the boys unpatriotic state- ments? A. It would give an opportunity for un- patriotic statements. Q. I have not asked you that. Why not go the whole length and answer my question. Now read it, please. Q. (Question read.) A. I am unable to an- swer that question whether it would or would not. The question is too general. Are you re- ferring -to the boys irt Mr. Schmalhausen's class? Q. Yes. We will take that. , A. I believe that with a class of seven term boys going' to the De Witt Clinton High School, that that assignment would not be a wise assignment. Q. I have not asked you that. A. It would tend to cause some boys to make criticisms on the President of the United States, and those criticisms would not be good for the boys them- selves. Q. I haye not asked you that. A. I have an- swered your question. Q. You have answered something else. A, Pos- sibly. Q. That does not make any diiference? A. Yes. Q. Let me ask you again: Do you think that 83 such an assignment to a class of boys such as Mr. Schmalhausen had, would tend to produce among the majority of them some unpatriotic/ statements? A. I cannot answer that yes or no. Q. Well. A. It would depend entirely on the boys' environment, and age they had reached and the teaching they had had. Q. You were asked about the boys of seventeen, by Mr. Mclntyre, and I am more specific in ask- ing you about the boys in Mr. Schmalhausen's class, assuming they are the average of boys of seventeen. Chairman Whalen: You might ask him about the boys of the De Witt Clinton High School. Mr. Smyth: Yes, De Witt Clinton, A. I do not lielieve that it would have that tendency with the majority of boys, but if it had that tendency with one boy I would not al- low it and I believe it would have that tendency, as shown by the result. Q. The object of an assignment of that kind is to get expressions of opinion which are worth while discussing; is not that so? A. Yes, sir. Q. If all the boys, or rather, if all of the boys should write in the same vein and they were all satisfactory there would be nothing to discuss would there, there would be no lesson to learn and there would be no moral to point out, would there? A. It is always possible to point out a moral in a lesson; yes, sir. Q. I mean if they were all \he same, if they were all satisfactory, it would not give the same opportunity to the astute teacher as if the assign- ment called forth a letter which demanded criti- cism, and that would give the opportunity of showing to the rest of the class, to the delinquent himsielf, the error of his way, and would fasten the lesson on them more certainly than if they 84 were all to write in the same vein? Is not that so? A. Under some circumstances; yes. Q. Then you do not think that really you are caviling when you say that there is any par- ticular harm to come to a class because one boy writes a letter which if ignored is harmful, but which, if criticised, instead of being harmful be- comes a theme for a salutary lesson? A. I am not caviling, for Herman has done himself a very deep wrong by writing that letter. Q. And the very thing that I am trying to make, the point I am trying to make is this an- swer in Herman's case, because that attitude was found out by his answer to that assignmeht, and his ideas have been rectified? A. His ideas, in my judgment, have not been rectified. Q. Have not you admitted that before? A. I have not. Q. Did you hear Dr. Paul testify that his ideas now were entirely different than what they were? A. I am not responsible for what Dr. Paul says. Q. Do you concur in what he says? A. I do not. Q. You do not agree? A. No. Q. With Dr. Paul? A. I do not agree with Dr. Paul; no. Q. Do you not think that growing youths learn more from having errors pointed out than from going along where there is no chance for their errors to become manifest? A. I do not. Q. You think a boy is safer going along with- out any chance to have his .errors rectified, al- though they may be latent in him, than if he is given an opportunity to come out with what is in his mind and have those ideas shown to be wrong? A. Your question is too general to be answered in that way. Q. Do you agree with it generally, with the 85 sentim,ent expressed in the question? A. You will have to be more specific in your question if you want me to answer. You are on a very question there as regards the proper fundamental thing in the training of childr.en. Q. And I have in mind exactly what you said about De Witt Clinton High School boys, that they thought more of economic matters than they do of having a good tinie. Is it not just that class of youth th^t an opportunity should be given to by such an assignment as that to bring out what is in their minds in order that if they express themselves erroneously they may be corrected? A. By such an assignment as that; no, sir. There are some things in the world that are sacred and there are some things that boys should not .express themselves freely upon in the classroom. Q. You do not seem to catch the point I am trying to make? A. Oh, yes, I do. Q. You do not agree with it, anyway, do you; you think it is better to let a boy have wrong ideas in his mind obtained through outside .en- vironment, than to come to the De Witt Clinton High School and be given an assignment which will disclose his error and correct it? A. There are plenty of other ways of getting at boys with wrong ideas than by inviting them to criticise the President of the United States. Q. That boy had it in his mind before the as- signment came out; he must have had it in his mind before the^ assignment came out, of dis- loyalty to the President of the United States; and how .would you have corrected that in Her- man's case? Not knowing his sentiments? A. I would correct it in my own work by building up in my classes a sentiment of respect for the President of the United States which would have affected him. 86 Q. And if h,e had never shown what was in his mind you never would have directed your teaching to him specifically as you would if he had shown, as he has in this letter, what was in his mind? A. I would have known certain ten- dencies in the boys of that class and would have , tried to correct them, not by giving an assign- ment of that kind, but by an assignment which would bring out a patriotic feeling of honest comment and patriotic feeling toward the Pres- ident of tbe United States and other people of authority. Q. Is it not so that the example of punishment generally is the thing that really teaches people generally to respect law and order and to under- stand it? A. No, sir. Q. Then you do not believe in punishment? A. I certainly do. Q. You do not believe in individual criticism of this boy but rather in general statem,ents, hoping that those general statements find lodg- ment? A. Not at all. I do believe in individual criticism of a boy. Q. How could you better crticise a boy than by giving him a chance to show what erroneous ideas he has and then correct them? A. I could get at his erroneous ideas in other ways than by that particular assignment. There are some assignments in tbe world that are not proper for a classroom in a public school, and this is one of them. Q. That is to say, that you think it is unsafe for De Witt Clinton High School children to frankly comment upon the attitude of the Pres- ident of the United States in conducting the war against Germany? A. Y,es, sir. Q. Although the answers to such assignment in the great majority of cases, according to Miss 87 Garrigues's testimony, are to bring out patriotic essays from the students? A. Yes, sir, I still maintain that. Q. You still maintain that? A. I do. Q. And notwithstanding the fact this particular assignment has afforded Dr. Paul, or whoever took Herman in hand, the opportunity of making a convert of that particular recalcitrant person, or that particular person, wrong-thinking per- son? A. If I had Herman in my class I would have discovered his attitude without giving him an assignment of that kind. I have taught such boys for years and never had an experience of that kind. Q. Did you ever find out about any mental attitude of such a boy as that without giving him an opportunity tQ prove it? A. A boy of that kind is constantly expressing himself with- out being invited to criticise the President of the United Stages. Q. Have you any instance in mind? A. Yes, this particular boy Herman said in Mr. LapoUa's classes that he had two terms under Mr. LapoUa, who allowed the boys to say anything they saw fit. I said if you had not been allowed to do that in that case would you hav.e written this letter, and he said that it was never called to his attention that it was not proper to write such letters. Q. When it was called to his attention he mend,e(d his ways? A. Not at all. Q. He did not mend his ways? A. No, but because it was called to his attention. Q. That was the point of his remarks to you? A. Not at all. Q. What was the point of his remark? A. He mended his ways, according to Dr. Paul, because the teacher convinced him that Germany was an autocracy; feeling Germany to-day was an au- 88 tocracy, he said, the Pr^esident of the United States was right in carrying on the war, and beginning the war, and as long as the President of the United States was right in beginning the war he therefore was wrong in writing such a letter about it. He changed his attitude toward the President of the United States because of that teaching of the teacher of history, and therefore he felt it was wrong to say such a thing to the President when the President agreed with him. Q. Do you believe that it is right to let boys of this age in the De Witt Clinton High, School write the negative on this topic: "We seek no selfish ends in this world"? A. I would not give that topic to the boys of De Witt Clinton High School in war times. Q. Would you consider it proper to allow students to writ,e an essay on the negative of this proposition: "Conscription is justifiable un- der a Democracy"? A. Not when conscription had been adopted by the Government as its policy, I would not allow the boys to write an essay on that subject in the De Witt Clinton High School. Q. Would you think that it was proper to per- mit boys of this High School to write an essay on the subject of "Revenue by bond issue or taxation"? A. Not during the sale of bonds. Q. Did you know that those things that I have called your attention to were in th,e examination papers of the De Witt Clinton High School given last week? A. I am not responsible for those papers. Mr. Smyth: I offer in evidence the examination papers of November, 1917, English, 8th Term. Mr. Mayer: 1 object to them as immaterial and irrelevant. Mr. Smyth: This is certainly relevant. It shows this was a topic which was not as dan- 89 gerous as the topics which were asked about in examination. Chairman Whalen: All right. It may be ad- mitted. Mr. Mayer: We have not admitted those senti- ments were in the examination papers and th,ere is no evidence here that they are. Mr. Smyth: If they are taken from the official papers. Dr. Paul, they are the official papers, are they not? Mr. Paul: Those are the official papers, with the approval of Miss Garrigues of the English Department. The paper was received in evidence and marked Exhibit B of this date. Mr. Smyth: I wish to read into the record so that the Committee will have it briefly before them, that in the examination papers November, 1917, the De Witt Clinton High School, the fol- lowing four: A B "A. White the brief prop.er only of an argument on one of the following topics, eith,er affirmative or negative r We seek no selfish ends in this war. Conscription is justifiable in a democracy." "B. Develop one of the issues into a paragraph." That was for the Eighth Term. The Seventh Term. "Five. A B. "A. Write a resolution on one of the topics given below. "B. Write in outline from the brief proper. 1. Strikes. 2. Revenue by bond issue or taxation. 3. Reading of current maga- zine picture." 90 By Mr. Smyth: Q. You had a long interview with young Her- man, did you not? A, Yes, at some length. Q. Some five hours in length? A. Oh, not at all. Q. Altogether? A. No, sir. Q. Was it all in one interview? A. With Her- man? Q. Yes. A. I had an interview with him in my office. He came here to see me, and I had an interview. Q. Only one? A. H,e was here more than once. There was only one that could be considered as an interview, if that is the one you refer to. He was here. I saw him mys,elf and took him down to Dr. StraubenmuUer. Q. Did not you in that interview with him ask him if it was not Mr. Schmalhausen who h,ad inspired the sentiments that he wrote in that es- say? A. I asked some form of that question. Q. The form of the question, was it not like this: You know Mr. Schmalhausen is the one who inspired those sentiments, was it not? A. It was not. Q. In substance? A. Not in substance any- thing like that. Q. Didn't you try to lead him into saying that? A- I did not. Q. Didn't he refuse to say Mr. Schmalhausen had had anything to do with those sentiments? A. There was never any charge made by anyone that Mr. Schmalhausen had inspired the senti- ments. Q. You are not answering my question : Did not young Herman say it was not Mr. Schmalhausen who had inspired such sentiments, and that he had nothing to do with it? A. Yes, he did. Mr. Smyth: Thank you. That is all. 91 Mr. Mayer: Mr. Anthony. Chairman Whalen: Have you any more wit-" nesses? Mr. Mayer: We have only one more witness. Mr. Smyth : What is the Chair going to do with regard to sessions? Chairman Whalen: We will finish this case and we will take up the other two right after. Mr. Smyth: All night? Chairman Whalen: All together, because we are afraid that if we adjourn to tomorrow you will get into the trial of one of those long cases and we will miss you. Mr. Smyth : I will be here, 1 will assure you of that. Mr. Whalen: We will finish with this now. Have you any other witness? OSCAR W. ANTHONY, called as a witness, being duly sworn, testified as fdllows: Direct examination by Mr. Mayer: Q. Are you the Vice-Principal of the DeWitt Clinton High School? A. I am known as that. Q. Were you present at a conversation had between Dr. Tildsley and Mr. Schmalhausen on November 2nd, 1917, at the high school? A. I was. Q. And there were present there yourself and Dr. Paul and what others besides on that occasion? A. Mr. Schmalhausen and Mr. Margolies. Q. The conversation was had between Dr. Tildsley and Mr. Schmalhausen? A. And Dr. Paul. Q. Now, tell what ypu heard on that occasion? A. As near as I can remember, when Dr. Tilds- ley came into the office he said that he wanted to see Mr. Schmalhausen. After Mr. Schmal- 92 hausen came into the room Dr. Tildsley told Mr. Schmalhausen that he had not seen the entire contents of the letter and he would like to have him read the letter in its entirety. Mr. Schmal- hausen read the letter and then Mr. Tildsley asked him if he thought those were proper sen- timents for boys to express, and he said he thought they were perfectly proper. Dr. Tilds- ley asked Mr. Schmalhausen if he would allow the boy to read a letter expressing similar sen- timents if they were brought in one week later than this had been brought in, and Mr. Schmal- hausen said that he would allow the boy to read such a letter, and Dr. Tildsley asked him if he would allow him to read a third of tliis kind of letter, and Mr. Schmalhausen said he would allow him to read a third letter of this kind. Mr. Tildsley asked him if he thought a boy of this kind, a boy who expressed such sentiments, should receive a diploma fj-om the school, and Mr. Schmalhausen said he thought the boy should receive a diploma from the school, and Dr. Tilds- ley asked him if he considered a boy who ex- pressed such sentiments a dangerous citizen, and Mr. Schmalhausen said he did not consider a boy who expressed those sentiments a dangerous citizen. He said that he believed in absolute freedom of expression in class, and after Mr. Schmalhausen had answered -these questions in the way I have indicated, Dr. Tildsley said, "Well, how would you, what comment would you make on such an essay or composition as this" and Mr. Schmalhausen said "If you will give me time I will make my comments," and Dr. Tildsley and Dr. Paul then left the office, and Mr. Schmal- hausen made some written comments, I under- stand. I have not seen the written comments. Q. That is all you know about the matter? A. That is all I know about the matter. 93 Mr. Mayer: Your witness. Cross examination by Mr. Smytli: Q. In the first place, Mr. Antliony, you have not been on friendly terms with Mr. Schmalhausen for three years last past, have you? A. I have always been on friendly terms with Mr. Schmalhausen; I have never had anything against Mr. Schmalhausen at all. Mr. Tildsley came to me, if I may be permitted — Chairman Whalen: You have answered. Q. Is it not so that you have not been on friend- ly speaking terms for three years? A. It is not so. Q. Except where your duties required you to ineet him? A. No, that is not so. Q. You say that you have been on friendly terms for the last three years? A. Perfectly friendly terms with Mr. Schmalhausen. Q. Intimate terms? A. No, not intimate terms; we have not been thrown together socially. Q. Have you avoided him socially? A. I have had no occasion to meet him socially. Q. Have you not avoided him socially? A. I have had no occasion to meet him socially. Q. You won't answer my question? A. I have not avoided him socially; I have had no oppor- tunity to meet him socially. Q. When Mr. Schmalhausen was asked whether he would allow a similar letter to be read, is not really what happened this — that Mr. Schmal- hausen called attention to the fact that Herman was a very intelligent boy, as shown by his record? A. I do not recall that. Q. Do you deny that? A. I do not recall it. Q. Do you deny it? A. I simply do not recall it. Q. You won't answer that question? A. I simply do not recall it. 94 Q. You won't answer that question? A. I do not recall it. Q. Will you answer the one question that I ask you, do you deny that that was said? A. I do not deny it. I do not recall it. Mr. Smyth: Thank you. Mr. Mayer: I think it is answered. Mr. Smyth: He has, finally. ii Q. Did not Mr. Schmalhausen say that he would allow another letter of Herman to be read be- cause he would expect that after he had been criticis,ed that the next letter he would write would not be open to the same criticism? A. I cannot answer this question. Mr. Schmalhausen — Q. Did Mr. Schmalhausen say that? A. I can answer in my own way. Q. Did he say that first, in substance? Chairman Whalen: If you cannot answer that question. The Witness: No. Q. Did he say that in 'substance ? A. No, I do not think he did. Q. You say you do not think he did? Did he say something like that? A. He said — Q. No, did he say something like that first? ' A. I can tell you what he said. ' Q. Not now. Will you answer that question first and stop fencing with me? A. It might have been somewhat similar. Q. Why didn't you tell us that on direct exam- ination if you are friendly with Mr. Schmal- hausen? A. It didn't come to my memory at that time. Chairman Whalen: It was not asked. Mr. Smyth: The Chairman states it was not asked. By Mr. Smyth: Q. Were you not asked to state that whole con- versation? 95 Mr. Mayer: As he recollected it. A. As 1 recollected it. Q. This important thing you did not recollect that was favorable to him; is that so? A. If you will allow me to answer it completely, I think you will see that it is unfavorable. Q. Now, have you twisted it so it was un- favorable? A.. No, I have not twisted it." I will simply tell you the truth. Q. Now, did not Schmalhausen say he probably would not write a similar letter again because he was intelligent enough to understand the criticism? A. I have no recollection of any such statement. Q. Did he not say that in substance? A. Not to the best of my recollection. Q. Did not you admit a little while ago that • there was something like that? A. I did not. Q. Do you deny that now? Do you deny that you just said it? The Witness: He said I was lying a moment ago. Mr. Mayer: I ask that the gentlemen be re- moved. They are making remarks. Chairman Whalen: Those gentlemen will please leave that end of the room. Leave the room entirely. A Reporter: 1 am a member of the press. Chairman Whalen: Who was it that said it? The Witness: This gentleman sitting right there made a comment a moment ago that I was lying. Chairman Whalen: He will leave the room. Is he a teacher? Who can tell us? Dr. Strau- benmuller, is he a teacher? Dr. StraubenmuUer: I do not know, but I will find out. 96 By Mr. Smyth: Q. What is the last question (question read)? A. I said the word — Q. Did not Mr. Schmalhausen say, with refer- ence to lefting the boy read a second or third letter, that it would not be fair to Herman to expect that ~ he would write the same as the first letter until the second or third letter was read? A. I do not recall anything of that sort. Q. Do you deny that he said that? A. I do not deny it. Q. Now, with regard to his being a dangerous citizen, did not Mr. Schmalhausen say that he did not think that Herman would be a dangerous citizen, again referring to his record and his ability to learn from criticism? A. I recall now — I do not recall his use of the word "again." Q. Did he not base his statement that he did not think he would be a dangerous citizen upon his previous record and upon his ability to learn? A. I recall nothing of the sort. Q. Did not he say that he was, according to his record, an intelligent person? A. I do not recall that Mr. Schmalhausen said that he was an intelligent person. Q. Did he not refer to his record showing his intelligence? A. I do not think the record card was brought in at that time. Q. Did not he refer to it? A. I do not recall it. Q. Do you deny that he did? A. I do not deny; I do not recall. Q. Do you deny that in connection with his statement that he would not be a dangerous citizen, in his opinion, that he said that he was an intelligent lad, and that he would listen to reason and would learn? A. I do not recall that any such statement was made. 97 Q. And you do not deny it, do you? A. I do not deny it. By Mr. Mayer: Q. What part of that conversation is it that you omitted to state when I was asking for your recollection of the whole conversation? A. Mr. Schmalhausen made the statement that he thought if a criticism of this kind were read a second or third time, if a composition of this kind were read a second or third time, that the criticism of the boys might show the boy the error of his way. Mr. Smyth: That is all, Mr. Mayer: That is all. Mr. Smyth: Wait a seeond. Chairman Whalen: Have you any more ques- tions? Mr. Smyth: Yes. Mr. Mayer: That is all. Mr. Smyth: That is all. Chairman Whalen : That is all. Mr. Mayer: I want to ask, Mr. Smyth, if you are willing to adijiit that Mr. Schmalhausen is the author of these two articles? * Mr. Smyth: I do not know (looking at paper). Yes. Mr. Mayer: I offer the article. Mr. Smyth: I object to it as not within th'e charges. Mr. Mayer: It is what the charge is. Mr. Mclntyre: The last one. Mr. Mayer: I offer in evidence an article from the "The American Teacher," contained in "The American Teacher" of May, 1914, entitled "The Ethics of Wrongdoing," by Sam Schmal- hausen, De Witt Clinton High School. The paper was received in evidence and marked Exhibit No. 7 of this date. 98 Mr. Mayer: I offer in evidence an article which was contained in "The Call" of October 28, 1917, entitled "The Tragedy of Maleduca- tion," by Samuel Schmalhausen.> The paper was received in evidence and marked Exhibit No. 8 of this date. Mr. Mayer: I do not know whether the Com- mittee would want me to read the whole of these articles. Chairman Whalen : No, we will read them our- selves. Mr. Mayer: I offer in evidence another article contained in "The American Teacher" of No- vember, 1915, entitled "The Logic of Free Speech," by Sam Schmalhausen, De Witt Clinton High School, New York, on pages 130, 131 and 132. The paper was received in evidence and marked Exhibit No. 9 of this date. Mr. Mayer : That is ^ our case. Mr. Smyth: We move to dismiss the charges upon the ground that sufficient facts have not been proven to sustain any one of them, seriatim, as if that portion were made as to each charge. Chairman Whalen: .Motion denied. Mr. Smyth: Exception. SAMUEL D. SCHMALHAUSEN, called as a witness in his own behalf, being duly sworn, testi- fied as follows: Direct examination by Mr. Smyth: Q. Addressing myself to the last proof, I want to know who is Joseph Loew, who wrote in the same periodical, "The American Teacher," in April, 1914, on the subject of "Ethics in the Public Schools"? A. At the time he wrote it he was a teacher in the De Witt Clinton High School at the tiine Dr. Tildsley was the principal. Q. The article I am about to offer in evi- 99 dence, was that read before the monthly teachers' meeting at De "Witt Clinton High School? Mr. Mayer: I object to this as immaterial and irrelevant. Chairman Whalen : That is away back in 1914. Mr. Smyth: The same matters contained in the article he wrote are contained in this. Mr. Mayer: You cannot justify a wrong by another wrong. Mr. Mclntyre: We object to it, because if that article is wrong it does not justify it. Mr. Smyth: If Dr. Tildsley approves of these sentiments. Chairman Whalen: We are not trying Dr. Tildsley now. Mr. Smyth: It ought to have some bearing whether or not this particular man should be singled out. Chairman Whalen: No. Mr. Smyth: If those in higher authority wrote on the same subject and with similar senti- ments. Chairman Whalen: From what the news- papers tell us, Dr. Tildsley is going on trial very soon.' Mr. Smyth: I did not know that your Honor would be influenced by what the newspapers told you. Chairman Whalen: No, I am not. Mr. Smyth: I make my offer. Chairman Whalen: We will not take that, be- cause that is a lot of irrelevant matter that has nothing to do with the trial in this case; as we look at it, either Professor SchmaUiausen has said these things at this particular time or he has not, either one or the other. What ^e did in 1913 or 1914 has nothing to do with this case. Mr. Smyth: But what another person higher 100 in authority, recognized as an authority, wrote on the same subject with the sanction of Dr. Tildsley, it seems to me, has some bearing, if not conclusively. Chairman Whalen: Dr. Tildsley may have changed his mind since that time. Mr. Smyth: Why should it not have some weight? Chairman Whalen: How do we know that that man wrote with the sanction of Dr. Tilds- ley? Mr. Smyth: That is what I am going to ask. Chairman Whalen: We are not trying Dr. Tildsley. The one whom we are trying is Dr. SchmaUiausen. Mr. Smyth: I will offer this in evidence. First I will ask this question. By Mr. Smyth: Q. I will first ask was this article entitled "Ethics in the Public Schools," written by Joseph Loew, read before the monthly teachers' meet- ing of the De Witt Clinton High School in March, 1914? Mr. Mayer: We object to that as immaterial and irrelevant. Chairman Whalen: Objection sustained. Mr. Smyth: Exception. By Mr. Smyth: Q. Is tliis paper that I hold in my hand a periodical that was published in April, 1914, known as "The Aiberican Teacher"? A. Yes. Q. And is that the same periodical that con- tains the article which was offered in evidence, written by you? A. It is. Q. Was this article written in the presence of Dr. Tildsley? Mr. Mayer: We object to that. 101 Chairman Whalen: Excluded. Mr. Smyth: Exception. Q. Did Dr. Tildsley make any comments on the subject at the time? Mr. Mayer: We object. Chairman Whalen: Same ruling. Mr. Smyth: Exception. I offer the article in evidence. Mr. Mclntyre: We object on the ground it is incompetent and irrelevant. Chairman Whalen: Excluded. Mr. Smyth: Exception. I will have it marked for identification. (The paper was marked C. for Identification.) By Mr, Smyth: Q. Is the issue of "The American Teacher," is- sued in June, 1915, which I hold in my hand, one of the publications referred to? A. Yes. Q. Did that come out after the published arti- cle of yours which went into evidence? A. Yes. Mr. Mayer: I object to that as incompetent and irrelevant. Chairman Whalen: He answered. Please wait. Mr. Mayer: I move to strike the answer out. Chairman Whalen: It is in the record now. Mr. Mayer: All right. Let it stand. By Mr. Smyth: Q. Did you see a letter written by Dr. Tilds- ley to the editors of "The American Teacher" con- tained in this periodical? A. I did. Mr. Mayer: I object to that. Mr. Smyth: Do not answer when there is an objection. I offer that letter in evidence. Mr. Mayer: I object to that as immaterial and irrelevant. Chairman Whalen: Excluded. 102 Mr. Smyth: Exception. Mark it for identi- fication. (The article was marked D for Identification.) By Mr. Smyth: Q. How long have you been a teacher? A. Since September, 1910, at De Wilt Clinton High School. Q. How old are you? A. Twenty-nine. Q. Where were you born? A. New York City. Q. You were educated in the public schools, were you? A. I was. Q. And you were teaching in the De Witt Clin- ton High School how long prior to the time of this Herman letter episode? A. Seven years technically; I have had a leave of absence for a year, in which I went to Columbia, but in time values I have taught six years, but in technical values, seven. Q. For the sake of brevity will you please state what the records show with regard to your standing? A. The records there by Dr. Lyon, District Superintendent, Dr. Tildsley, who was my principal for three years or more, possibly four, and by Dr. Paul. I think I am not exag- gerating when I say you will find the underlying parts that are relevant, that is uniformly what people would call high praise of character, suc- cessful teaching efficiency, affection for the boys, ability to co-operate with the pupils, all the things that are required in relation to personal and gen- eral social and moral efficiency. Q. Do you remember the assignment which called forth the letters among which was the Herman letter? A. Yes, I remeniber it very ac- curately. Q. Do you remember the wording of that as- signment? A. I think I do. 103 Q. What was it? Mr. Mayer: I object to that. The assignment is in evidence. Mr. Smyth: It was received subject to identi- fication. Mr. Mayer : No, it is marked in evidence. Mr. Smyth: At the time I stated it should ap- pear that it was not exact it could be corrected, and the statement was made by my opponent that that was written by a boy. Mr. Mayer : Since then it has been identified by Dr. Paul as certified to by Mr. Schmalhausen and put in evidence and it is Exhibit 5. By Mr. Smyth: Q. Is that the wording of the assignment as given by you to the class? Mr. Mayer: I object. A. As originally — Mr. Smyth: Wait a minute. There is objec- tion. ' Mr. Mayer: I object on the ground that the paper itself is the best evidence. Chairman Whalen: You read it to him; I un- derstood you had read that, and both agreed that was the paper. Mr. Smyth : No, the word "very" was not in it. according to their own witness. By Mr. Smyth: Q. I will read it to you : "An open letter to the President: Write a very frank letter" to Wood- row Wilson commenting within the limits of your knowledge upon his conduct of the war against the German Government." Now, is that the assignment as given by you to the students? A. Not word for word. There is a, slight modifi- cation, which may be important. Q. Do you recollect* what the wording was? A. I do. The simple change is this : "Write an 104 open letter to Woodrow Wilson commenting frankly." This reads a little different. Q. "Comment frankly." A. The rest of it is all right. Q. "Within the limits of your knowledge, on his conduct of the war against the German Govern- ment"? A. Yes, "Within the limits of your knowl- edge upon his conduct of the war against the German Government." ' Chairman Whalen : Mr. Smyth, a member would like to ask a question. By Miss Leventritt : Q. I would like to ask if the boys in Mr. Schmalhausen's class write down the assignments given to them by him, given to the boys by him, or does Mr. ,Schmalhausen put it on the black- board? A. It is dictated at the very begining of the period and the boys have books out, and I take it, write it down. I believe that some of them even try to memorize it, but generally I think they are honest and do write it down. Q. But you do not write it down? A. No. By Mr. ^myth: Q. You knew nothing about the Herman letter until when? A. Exactly two weeks after it had been assigned. It was assigned October 19th, Friday, and two weeks later in the principal's office Dr. Tildsley gave me the whole letter. Q. Prior to that had you had a conversa- tion with Dr. Paul? A. I had, October 26th, Friday afternoon, 3:30. Q. That was the first conversation you had with him; what was it? A. The first conversation, I could not meet him during the week, when he had asked me to, because he and Dr. Tildsley were busy in the office attending to some boys 105 who had been causing strikes, and he could not meet me in his office, as I have explained. Q. Will you state your recollection of the whole conversation with Dr. Paul? A. I came in the office. He was there alone, standing. I was sitting. He said, "Do you think that that is a proper assignment to give in war time"? I said, "If by the word 'proper' you mean intelligent, I firmly do." He said, "Now, don't you think it might arouse in some boy's mind a desire to speak disloyal utterances?" I said, "If you will be more specific in your interpretation of 'dis- loyal' I will answer." He refused to answer ac- curately what he meant. Q. To answer what? [A. To answer my ques- tion. And then he went on and repeated that "Some boys, wild-minded boys, possibly a few, might write essays with very unpatriotic utterr ances," and I said again, "Will you specify so I can talk intelligently about it." Chairman Whalen: We cannot hear you. A. (continuing) : I beg pardon. Finally, after numerous questions pro and con, he kept re- peating, "Now, if I were you I would be careful in these matters, I would not introduce my per- sonal views." I said, "Do you accuse me of in- troducing personal views"? And he said, "No, do not put words in my mouth. I never said them." I said, "What is the meaning of this?" He said, "All I said was that I would not intro- duce any such propaganda." And I said, "I have never tried to introduce any propaganda." Then he asked me to retract the statement on the ground that I had put the words in his mouth. We dropped that in a moment, then I said, "Now, let us be reasonable about the matter: As to this assignment, it may be injudicious, I think I am open to conviction on the point, I mean in the intellectual sense, and what would 106 you have me do? You have never invited me be- fore to submit subjects and I have given hundreds of them to the boys in the course of my teaching of classes in the school," and I said, "Would yoii want me to bring the subjects down to you so you might look them over, and if you thought that it was unwise because of the w^r, I am sure I would be open to reason." I said, "You have a head of department for that purpose." I said then, "Is it understood that hereafter that when I give a subject which is of somewhat doubtful value from your point of view, if I can see that doubtful value, I am to go to the head of the department and ask her?" He said, "Yes, you can do that." I said, "All right, I will." That is the substan9e, I think. Q. Is that all of the conversation that took place at that time? A. Yes, so far as I was concerned. It was my impression that was Oc- tober 26th, in the afternoon, and the subject had been dropped, because we had agreed that here- after I was to show the specific assignments to the head of the department, and that she was to give her 0. K. or vice versa, and I would stand by the decision. Q. Was the subject of the Herman letter spoken of at all? A. Not a word, Q. You have given now all of the conversa- tion that Dr. Paul had, all of the conversation with Dr. Paul at that first interview? A. |A faith- ful summary of it. Q. Do you remember the next interview that you had with regard to this' assignment? A. Yes, I was called from my class on October 31st to meet with Dr. Tildsley, and I do not know who else. I did not know at that moment. I was called at 2:30 and waited outside until 3:30 near that little office, at which moment Mr. Schneer emerged; that was the end of the day. I said to^ 107 Dr. Tildsley, "I do not object to it at all on the ground of union hours or anything like, but the truth is I have two engagements, one with the Committee that was going to discuss the long day, and I said, "If you do not object, tomorrow morning will do, and I will come to your office." He said it is all right. Therefore I was called the next morning, about 9:30, out of my class, and I was asked by Miss Garrigues to come down \o the little office and meet the two gentlemen. Dr. Tildsley apd Dr. Paul. What else do you want me to say? Q. Do you recall the conversation that then took place and all that happened at that time? A. I believe I can tell it safely. Q. Then state it? A. The very first of it was this: "Did you approve of the Whalen resolu- tions"? A. "I did." Q. Who asked it? A. Dr. Tildsley asked (I will assume throughout that Dr. Tildsley was asking, therefore, if not I will insert Dr. Paul) : "Do you think that the Teachers' Council has a right to rush into print?" That was the sub- stance of that question. "I do not like the use of the phrase 'Rush into print,' and if you mean did they have the right to use publicity with relation to their grievances I think they (had, the Teachers' Council had the right to call that meeting at which 105 of the De Witt Clinton High School teachers were present and at which that resolution was drawn up and approved by 103." Q. Why do you call it the Whalen resolution ? A. I think that is the technically correct name. Q. How did it get that name? A. I suppose through repetition, using that name, derived from the fact that Mr. Whalen was at the meeting before which grievances were presented by rep- resentatives of students and representative teach- 108 ers and principals and had made assertions which some of us disapproved of, calling them in the resolutions undemocratic, arrogant and anti-social. Q. Are these the resolutions? A. Yes, those are the resolutions. Mr. Smyth: I offer them in evidence. (The paper was received in evidence and marked Exhibit E of this date.) Q. Now, go on and state the conversation as near as you can. A. Dr. Tildsley said, "What is it that you object to in Mr. Whalen's attitude?" A. And I said, "I do not like to see an official of the Board of Education with an intent of in- timidative authority to young people as if bully- ing them, that he would close down the schools if they did not go back to their schools." I said, "Some of us as teachers, grown up teachers, have some intelligence." He answered by the as- sertion, repeated two or three tim^s, with a finger pointing to the teachers in the office, "That neither the teachers nor the pupils were going to run the schools." He said, "Is it not true that the pupils and teachers do not run the schools." I said, "That depends upon th,e use of the word 'run.' If you use the word 'run' in the narrow, technical sense, I grant it. If you use it in a fair educational sense, I do not grant it, but in a broad educational sense the teachers and pupils do run the schools," and we went on with that. Q. Come down to the Herman letter? A. We took up a half hour with that. Then Dr. Tildsley read me a letter. I did not know whose letter it was, because it was in his possession, his hand. He was I reading it. He read the first page, and began a series of questions, first of importance, "Don't you think that it is unwise or lielps to inculcate disrespect in young persons if you al- low them to addi-ess the I^resident thus inform- 109 ally"? I said I thought not, that if he knew tli,e boys themselves, the boys who were going lo winte that composition, he would agree they were dignified young men with respect for the President of the United Stales, that "Woodrow Wilson," as tl^e phrase was used hundreds of times a month, and I am certain the people using it had no intention of being disrespectful. Then he went on with the assignment and asked me two or three questions and asked if I thought it was wise. I said, "If wise means useful and stimulating, yes." He asked two or three more questions on the subject of in- stinctive respect, and asked me, "did not I think it was my duty as a teacher to fill the boys with as great an amount of instinctive respect for superior officers, as such, that they would automatically respond to superior office and re- spect it." I said that I thought that was a very dangerous tendency, because we know from our study and observation of young people that they have a great amount of natural native respect for superior position, and that our function was to build that respect upon principle, from reflec- tion from the knowledge of the conduct of the man they were respecting, otherwise we would have no underlying means of differentiating be- twCiCn persons doing wrong in office and those doing what was right. All I insisted upon was that we teach respect for position; that if the word "instinctive" implied blind obedience, blind re- spect, blind reverence, I certainly would object. That was a fair summary of that. ' Q. Did you at that interview say in words or in substance that you agreed in the principle of the letter or saw no harm in it? A. There is not a remark which I mad,e that could possibly be construed that way. Q. Was such a question as that asked of you. 110 and if so what was your reply? A. On tlie first, day there was no such question asked; the nearest question was this: "Don't you think that if a boy writes like this (that was the first page; I did not know which boy it was), he is a dangerous citizen?" and 1 said, "You know young boys are capable of growth and 1 would not bb- willing to come to any such conclusion from just that, 1 would want to know more about the antecedents of the boy, about his environment, his mental attitude and previous record," and I pointed out that the specific offence is not any test, the full test of personality, because we know we all want to be accredited with the average as we grow; that is what 1 believed in th,e cast of the boy unknown that first day. Q. At that time you did not know who the boy was? A. 1 could not. He read me the first page. He did not tell me who it was. Q. He read you the first page? A. That is what he told me the next day. Q. Is that all that occurred on the first day that you can recollect? A. No, there was a strategic moment. I was about to go, and just as I got up Dr. Tildsley said,, or Dr. Paul said, "Wait a minute." Dr. Tildsley had asked me several questions about my connection with the Whalen resolutions, and Dr. Paul asked me: "I want to ask you a question." Dr. Tildsley said, "Go ahead," 1 said, "Yes." He said, "Were you th,e author of the Whalen resolutions?" 1 smiled a minute. That was Thursday morning. The previous day four other members of Teachers' Council had been quizzed. We had made up our minds th&t the whole thing was a star cham- ber proceeding. Q. Wait a second. What did you reply when you were asked, "Did you write the resolutions?" A. I said to Dr. Paul if he would recall the meet- Ill ing for the 103 teacl^ers who approved and en- dorsed the resolutions he woUld find out there wlio were concerned in the authorship of the resolutions; that was the specific statement I made to him. Q. Was that all that occurred at that meeting on the subject of the Herman letter? A. We discussed instinctive obedience and instinctive respect all the time. Q. Did you express any sentiments opposed to instinctive respect of the rules of this country? A. As far as — Q. Answer that yes or no? A. I did not ex- press any sentiments opposed to the inculcating of respect for the Pj-esident of the United States. It was not rulers, he mentioned Pr.esident of the United States. Q. I mean by' that those who gov.ern. On the contray, what did you say in that regard? A. My own record of seven years of active class- room work. Q. What did you say? A. This was the sub- stance. Q. All right. A. That there was no suspicion at all of my having ever failed to inculcate re- spect; we had simply gotten into a metaphysical discussion on the use of th,e word instinctive. I said to Dr. Tildsley, "I do not like that word 'instinctive' because it carries the blipd idea, the dog-like idea; I will substitute as the equivalent of it my interpr.etation of its interpretation, the word .reflective. That is where the boy was to give his respect naturally, as he does to any per- son who occupies an important position and performs deeds of social beneficence." Q. Coming to the next day, Mr. Schmalhausen — have you given all the conversation now that you can recall? A. Of the first? Q. Yes. A. Would it be relevant here, Mr. 112 Smyth, if I read this paragraph from "Oral Edu- cation Sylabus on" — Mr. Mayer: I object to it. Q. Did you refer to this article in your talk? A. No. Mr. Smyth: Then it would hardly be relevant. By Mr. Smyth: Q. Coming to the n,ext day, will you please state what occurred on that occasion? A. Yes, I will just look up a point, that was November 2nd, a Friday. Q. That was the day when they showed you the whole letter? A. Friday. That was the second meeting. At the yery beginning Dr. Tildsley wanted to make sure that he had got me right on tlie problem of the principalship. He are quizzed me the day befor.e a few minutes on the functions of the principal. He wanted to re-afilrm the truth or untruth of what I said. I think we came to some understanding. May I say this: I want to bring in here a part of the first conversation which is linked with the second, which I have not g^ven. It is in relation to the principalship. Q. State it. A, I had been asked whether I thought that a principal was indispensable and I said, word for word, and repeated the next day when they had given me a little renewed quiz, that under the present system that I could see no indispensable educational function, I em- phasized that, which the principal performs. I went on to outline the fact that he was absorbed all the time in administrative and technical du- ties which I did not in the t^rms of my defini- tion call functional, and w,e went over the prob- lem of supervision of the principal, how much it meant. I pointed out that it was simply im- possible to expect any princpal to be very ef- 113 ficient because of the numerous subjects, the fact that he lacked the time — Q. I know we are going into something out- side of the charges? A. I bring that in to show that on the second day we began with that sub- ject and he said "Have I got you right, that under the present system the principals perform no indispensible function?", and I, said "'No", we must put in the word "educational". From that we went on to the letter. He said "Yesterday I did not read more than the first page. I was a little bit taken back, so I wondered what it meant and 1 asked whether Dr. Paul had given only the first page to be read to me, or whether he had been given all the letter," and he said he had been given the whole letter, and he at first had not read it all, and he had just read it, and he said " I know it is a serious problem to dismiss this boy Herman, 1 do not think that is the wise way of treating him, let us look at him educationally, what shall we do about that type of a boy, he is a dangerous citizen." Mr. Mayer: Who said this? The Witness: Dr. Tildsley to me. I said, "Suppose you do this: We want to be fair to the boy, we both agree he has committed an offenc^. Suppose we get all his records in every study for the past six or five terms, suppose we send down, which we have done time and again in relation to these boys which have been unsat- isfactory, and 1 suppose these will give^ us the knowledge of past, so possibly we can judge him perhaps with a little more understanding because this act looks like a terrible act, and with relation to his previous career it may be only secondary, and we will have hopes he will grow up and improve." And finally we canie to this problem. Dr. Tildsley said, "Now, suppose 114 this boy read the same thmg again in class or wrote the same, would you allow him to read it?'" I said that assumption is simply contrary to the basic order of common sense. This boy is a reasonable boy, he is intelligent. He is capable of growth. That is what I am assum- ing as his teacher. I assume that criticism will teach him. And he kept repeating about three times hypothetically "But suppose he wrote the the same thing would you allow him to read it?" I said "Dr. Tildsley, I could not possibly know beforehand the contents of the letter. I should certainly not wish to be a policeman and oppose myself personally physically to the boy. I would have to allow him the privilege to come before the class and begin to read it, and the problein was when to stop him, and since in this first letter, the most dangerous utterance came at the very end it was the problem of where to stop that boy". "There we would have a little difficulty", but 1 kept insisting that the boy would not repeat the offence; he was capable of growth and it was my duty in behalf of the theory of fair play to boys to allow him to begin to read." "If, however," 1 said "the second letter proved as offensive as the first that boy should be con- sidered incapable of going on with his educa- tion", for I said "For my part I did not wish to make any such assumption." Then he says "Sup- pose he did it a third time". 1 said "That is contrarji to reason. The boy is then put down as obstinate, stubborn, intractable, and therc- foic utterly unfit for education." That was the substance of my answers to Dr. Tildsley on the problem of the repetition. Q. Had you at that time expressed yourself as being in accord with the letter or the senti- ments of the letter? A. I never mentioned a 115 word or whispered a thing that could be con- sidered as implying what the gentlemen are now assimiing that I was in accord with anything in the letter. The fact that they asked me to criticise and gave me ten or twelve minutes to do so, I think would indicate the fact that I had not yet expressed any such sentiments. If it had been put to me at once, and if they gave me the letter to criticise — Mr. Mayer: I object to the argument. By Mr. Smyth: Q. Then you were given the letter to criti- cise. How was that done? What was said to you? A. Dr. Tildsley said "Suppose you correct it now". I said "All right". I did not happen to have a pencil. I walked over to a stenogra- pher and got it. He gave me a pencil. I said "In about ten or twelve minutes." He said "That is all right". At that moment he walked over to the corner of the office and talked with Mr. Anthony. In twelve or fifteen minutes he came back. He read them over. He did not under- stand my handwriting. I told him. He made absolutely no comment on my criticism. Q. Is that all that occurred on that occasion? A. Then he began once more to question. "Now, suppose this boy had written the same sentiments would you allow him to read it?" I said it would be my duty as a fair-minded teacher, since I could not know the contents beforehand, to allow him to read, and inasmuch as the boys were vigorous-minded and a vast majority, as everybody admits, patrioticj we could rely on the pupils to begin vigorous criticism of any statement he would dare to make in the second letter which would be offensive. Q. Have you now stated all that you recollect 116 of the conversation that took place on that day? A. There is one more point. Q. With reference to the Herman letter? A. Yes. I said to Dr. Tildsley, "Now, Doctor, would you allow Miss Garrigues to be here, I think she will be helpful, not because she is prejudiced in my favor or against me, but she will be help- ful," it so happened that the first set of papers were taken down on one day and the second set of papers or the remainder, the second day, ajid of course, I was anxious to have her give all the papers in, which she of course did, and I was anxious to know if Dr. Tildsley had been given all of the papers, and I said "Have you the whole set of papers?" and he said "Yes." I said "Do you object to bringing Miss Garrigues into this?" and he said "No" he said it was all right, he would see her later. I tried to give the im- pression that the criticisms naturally were of a paper I had not seen, a paper which was shown to me only two weeks later, a paper which had not been read in my class, and on that paper you have a written criticism, everybody knows the function of a teacher is double, the written and the oral, and certainly in a class a teacher would have added oral criticism in the presence of the whole class to his written criticism. Q. Had it been your custom when essays were written in response to an assignment of that kind to make more or less technically what are called mechanical annotations on the paper it- self and to supplement that by oral statements explanatory? A. We have followed in our English department for years the double method of calling attention to the English as being one of our functions, and calling attention to the process of logic, the nature of the statements, implications of the statement, logical functions, and if you like technical functions. 117 Q. Is there sufficient room in the margin of such a paper as that to make sufficient criti- cisms of the substantive part of an essay? A. Only through hints and phraseology carrying their own significance. Q. The marginal notes are merely for the pur- pose of calling attention to the faulty English; is not that so? A. Partly so. ' Q. And partly? A. Partly to the process of thinking, etc., self-expression. Q. Now, will you please state to the Committee what are your own ideas with reference to the Herman letter? Mr. Smyth: Is it all right? Mr. Mayer: Go ahead. That is just what we want to hear. A. If the Committee had time, and it has not, and I shall not impose upon it, I could read or they could see for themselves a list of all the assignments given this term from the very begin- ning of my case. Mr. Mayer: That has been stricken out. Q. Let us get to the point. What are your own ideas with reference to the spirit and sub- stance of the Herman letter? A. Yes, sir. Her- man comes from an environment where I think we may call the people — Q. You are digressing. First, categorically, do you agree with it or disagree? A. Oh, absolutely disagree from head to foot, Q. What are your ideas with reference to the subject matter of the letter? A. The subject matter is offensive from every point of view. Part of it is irrational. Part of it is crude and violent, the whole thing is a wrong frame of mind, and in my discussion with Dr. Tildsley, with which I took up a lot of time, I tried to explain clearly what influences in that boy's social and economical and home environment 118 were responsible for some of his sentin^ents. So far as I was concerned there was no implica- tion at all at any time that I ever accepted the thought of that letter. Q. On the contrary how did you express your- self to Dr. Tildsley and Dr. Paul and Mr. An- thony? A. I pointed out that if that boy had written a similar offensive , letter for his second and, as he put it, a third time, I would look upon hini as simply hopeless mentally. I think that is a sufficiently severe criticism of a b^y sixteen or seventeen. Q. With reference to the charge that is made here with reference to what you have written, I have never had a chance to read these things which you put in evidence, "The Ethics of Wrong-doing." by you, published in May, 1914, in "The American Teacher" and the article entitled "Confessional, the Tragedy of Mal-education" by you. Is there any statement you desire to make to the committee about those? A. That if only a paragraph is quoted it would be unfair, be- cause we know it is easy to wring from any man's work an excerpt and give it a false psy- chological background. I think it is fair for me and for the committee to take a few minutes and read the whole article so as to get the background of that article on "The Tragedy of Mal-educa- tion." I would like to say that it is a summary of ideas contained in several books. One is Boris Sidi's "Philistine and Genius," the "Tragedy of Education" by Edmond Holmes, a book by Al- fred Russell Wallace, "Social Progress and the Moral Environments" and the Hanus Reports pubUshed several years ago, "Investigations of the School Systems." Those are mentally the back- ground. Just one thing more I should like to add, the "Essay on Education," by Bertram Russell found 119 in his volume "The Principles of Social Recon- struction." Those are the educational and psy- chological antecedents for that article called "The Tragedy of Mal-education." Q. In justice to yourself and in view of the general statements that have appeared in the public print from time to time about teachers, without mentioning their names, will you please state what are your views with reference to whether or not you are in accord with the poli- cies of the administration in this matter of war with Germany? A. I am sure I accept the great document that President Wilson has written representing the highest ideal of which Ameri- cans are capable. His interpretation, his attitude, his points of view in relation to the war for de- mocracy meet with my complete intellectual ap- proval. I think there has nothing ever happen- ed in my classroom, in my present life that will deny the truth of my general intellectual stand- ing. If you want me to say a word or two more specifically I would be glad to do so. Q. I want to go on record one way or the other on the subject of your Americanism? A. It is true, for example, that when there was a discussion of the Conscription Act I wrote in behalf of the volunteer system as being more in accord with the traditions of freedom in America, but since conscription came into being as an act I have come under it, as have other young men between the proper ages. That in itself I should think is sufficient evidence, technically and mor- ally, that I have complied with the request of the government, in spite of the fact that I tried in my little way to be instrumental in preventing con- scription aS the first policy believing that the voluntejer system might be better adapted to meeting with the sympathies and views of the people, and if it be necessary conscription later. 120 When it came into being I cam,e under its op- eration as I have testified already, as have others between the proper ages. Q. You are in sympathy with the policy of the Am,erican Government? A. I am. Q. In waging this war? A. I am. Mr. Smyth: He is your witness. Cross examination by Mr. Mayer: Q. Mr. Schmalhausen, did you say in com- menting on the fact that essays or letters such as Herman wrote might be read in class from time to time, thus inferring that the De Witt CUn- tonHigh School, "Is no doll's house"? A. I never made that assertion. Q. Mr. Schmalhausen, you know that you are a teacher employed by the Board of Education of the City of New York? A. I do. Q. You know that the Board of Education of the City of New York is a part of the State Government charged with the education of youth in the City of New York, do you not? A. I do. Q. Do you not know that as an officer of the Board of Education, which is a part of the State Government, you are personally charged with certain duties with reference to the State Gov- ernment? A. I understand that. Q. And that those duties have to do with the development, educationally, of the juvenil'e mind; is not that right? A. That is right. Q. Do you not believe that as part of that pub- lic duty of yours it is necessary for you as part of your policy in your classrooms to teach in- stinctive respect for constituted authority? A. The word instinctive carries the intelligent and fair content of my word "respective"; I absolutely do. Q. I mean by instinctive respect an inborn, native natural respect for constituted authority? 121 A. If you do not mind my saying so, if it is in- born what am I to teach. Q. Strike the word "inborn" out. A. Then it is native, you say? Q. Yes. A. You will have to .explain what you mean by native. Q. I mean such respect as any American boy will give to constituted authority under our form of government? A. Yes. Q. You do believe that? A. I do. Q. Regardless of whom the individuals may be who occupy the offices? A. What is the meaning of regardless?' When you have — let me argue a little bit? Q. I am speaking now of the high governmental officials. Do you believe that? A. I believe it is my duty to teach respect for constituted au- thority. I stated that before. I repeat it. Q. Instinctive respect? A. If it has the con- tent which you put later into the word "native" —yes. Q. What do you mean by r,eflective respect in contradistinction to instinctive respect? A. I as- sume instinctive to mean doglike fealty, a blind, mechanical attitude which people are capable of, young people are capable of. , By r.eflective I simply had in mind the constant corollary between the dignity of the high office and the dignity of the man who occupies the office. Q. Do you believe that you should teach in- stinctive respect for the office of the President of the United States as such in time of war? A. If you ask — Q. I ask you to explain the phrase "In time of war"? A. That is a m,etaphysical phrase. Q. The highest office in the land, I mean? A. If "as s.uch" means that — certainly. Q. You do? A. Certainly. Q. No, no, answer my question? A. I can- 122 not until 1 ask you to explain the phrase "As such." Q. In tin^e of war? A. That is a metayhysical phrase. Q. Do you mean you should teach and incul- cate instinctiye respect for the occupant of the office of President of the United States in time of war? A. Or in time of peace for that mat- ter, taking the word instinctive in the sense in which you later used th,e word "native," I do. Q. Do you believe that it is a crime now that Congress has declared war against the Imperial German Government to use any means what- soever to oppose our government in the con- duct of the war? A. I do, within the definition stated by law and the Congress; I am not a lawyer, I am assuming you are using the word "crime" correctly, and I answer that yes. Q. Does not that mean that the President is entitled at this time in matters pertaining to the conduct of this war to that dog-like respect of which you just spoke? 'A. The word "dog-like" as used by yourself? Q. No, I did not use it. A. I know, but I used it, I thought correctly. ' By Mr. Mclntyre: AQ- What do you mean by dog-like respect? A. Imposed by external authority, as though I was holding a club. I put this question to Dr. Tildsley: I said, for example, assume that there is a cordial relation between me and my pupils, we have our common friends, they care about me, have the affection for me, maybe, that I have for them, but it is not 'due to the fact thai on the first day I came to. my classes I said "At- tention: from now on every boy in my class must have an instinctive respect for me." No, through cordial relations of every day classroom 123 contact, with kindly persuasion through deeds performed, through courtesy and kindness they have for me what I would call, if you like, in- stinctive respect. I did not impose it by having a club over their head. Q. Lro you believe in absolute freedom of ex- pression by students in the class room in regard to such a theme as this contained in Exhibit 5? A. If by the word absolute you mean utterly un- censured, uncriticized, certainly, it is not contrary to reason. Q. What freedom of expression do you believe in? A. I believe in the freedom of expression that arises from a boy's recognition of the fact that one of his greatest rights in a democracy is to express his mind as intelligently and with as much dig- nity as he can on the subjects within his proper knowledge, at the time; that is freedom of ex- pression, and others shall listen and if they dis- agree they are to wait and not to interrupt or interpose in the midst of what he says. It does not mean that you are to take subjects twenty-five years mentally beyond the boys, and say: "Here you are, discuss that boys; talk that over." It is an unfair interpretation. Q. Do you believe that it is the business of courageous radicals to enthrone unfettered free- dom of utterance, as the one imperishable safe- guard of every one's unique contribution to mortality's melting pot? A. Mortality's melting pot? Q. Yes, mortality's melting' pot? A. They must have gotten it wrong. That is all right. - 1 under- stand the substance. Q. You understand the substance? A. Yes, sir. Q. Look at this article and see if you did not write it? A. Yes, I wrote it; I wrote this "The Logic of Freer Speech." 124 Mt. Smyth: When was that? The Witness: November, 1915. Q. Do you believe in that? A. This was written for adults, for anything between 21 and 75. That was a vigorous" expression in a point of view in opposition to the other point of view. I quite easily see how anybody who has a mind to can twist the word "unfettered" to be a kind of anarchistic license, but as to ever having meant any such a thing, perhaps my years of conduct may be a dismissal; that I did not mean. Q. You never did mean what you said here? A. I never meant by the word "unfettered" what some people may think I do mean or other people think by "unfettered." May I add this remark: This article came out shortly after Prof. Overstreet had talked on the same subject at a large teachers' meeting, and there we did try to work out a theory of freedom of speech under his guidance; what are the limitations? And here I may try to make some analysis. Q. If a pupil should not agree with the actions of the President of the United States, must he still manifest respect for the President of the United States in war time? A. Not only must he, but he will, I am sure, for many reasons. Q. You write in this article called "The Tragedy of Mal-education," as follows, and I ask you if you still agree with it: "I am sick at heart. My mind is perturbed. When I think of these things I grow so despondent I am in a mood for revolu- tions. I realize my insignificance. I realize the tragedy of my tactful cowardice, the guilt of my tactful evasions. I realize to be a teacher is to •be a craven, a blind fool and an apologist any- thing, great God, but a truth teller." I am glad I mentioned before the relation of the paragraph to the whole article. You have not the time to read 125 it and you will do me the courtesy as soon as you ' can to read the whole article and get the background. Before that paragraph read "In my Moods of Disillusion." Anybody who has any tendency to be reasonable, or does not want to frame a person here will be glad to read the article and agree that it is the poetic or prose- poetic expression of a mood. Q. Independent of this article do you believe that "to be a teacher is to be a craven, a blind fool, an apologist, anything, great God, but a truth teller," independently of this article? Mr. Smyth: You cannot take it independ- ently. Mr. Mayer: I am trying to get his side of the question. A. By all means, get my side of the question. If you are asked to judge a man whom you do not know, you would try to find out not only his pwn acts, his own conduct, but other peo- ple's opinions; if you had a teacher who, had been teaching for eight or ten years, and in the judgment of teachers duly experienced and perhaps, as I am citing an instance of a teacher, I will have to speak personally, he was looked upon as a person of high development, and high ideals, by no stretch of the imagination could one suddenly descend to the conclusion that be- cause he had written a certain paragraph carry- ing a metaphorical interpretation, it was to be carried against him as a literal interpretation. When I say a "blind fool," I know greater men than I have referred to mankind as fools. It is not to be taken in a literal sense. I think that statement is a fair stateinent if fairly inter- preted as it should be, as a quotation from a poem, though I do not claim that this is a poem at- all. Q. Do you remember when you were asked 126 about this article of this boy you made use of the expression to this effect, that when the motive is not vicious then the act is not serious, or words to that effect, the Herman boy? A. When I was asked about the Herman letter? Q. Yes. A. What was specifically asked now? Q. Do you remember having made a remark like that on that occasion of your discussion with Dr. Tildsley of the Herman letter? A. As far as I know we did not discuss the motives. Q. Do you believe that where the motive is not vicious the act is not serious? A. The word "serious" has a special significance there; I believe where the motive is pure the act is not serious in a criminal sense. For example, if a child were to shoot a person, while wfe know the consequences are desperate enough, we can- not praise that child for that, for having done it. Everybody will assume that the child has to be forgiven, because the motive is pure enough; where you hurt a friend the motive is pure, and the chances are you will be for- given. Q. Hence, you believe that if the boy Herman, in writing this letter to President Woodrow Wil- son did not have any vicious motive in writing that letter, his act was not serious? A. His act was very serious. You should say — Q. That is— Mr. Smyth: Do not interrupt him. A. (continuing) : You should say, assuming tlie boy's motives were honorable, and the re- sults of the motive were bad, as in the case of the letter, would the act be considered serious? The answer is certainly. Q. Then you believe under such circumstances in the indispensable value of the most extreme unfettered discussion of matters of that kind? 127 A. I do not understand the co-relation and rele- vancy of that at all. Q. If you do not understand it, you need not answer it. Teachers, you say, in a broad sense, run the school? A, Yes. Q. What do you mean by that? A. That is clear to some of us, as I said in part to Dr. Tildsley, doing as well as we can, taking an interest in their lives, the vital fact in the school system which no one can deny, is the having of as close relation between the pupil and the teacher as we can develop, and the teacher wants some credit for that. Q. You think then, that you have a very strong and penetrating influence over the juvenile mind as teachers? A. We surely do. Q. Do you believe that as a part of the exer- cise of that influence over the juvenile mind it is your duty as a teacher in a Board which is a part of the Government of the State, to inculcate patriotism in the minds of your pupils? A. Surely. Q. You do? A. I certainly do. Q. Unquestionably so? A. Unquestionably so. The majority of letters go to prove that if you want evidence; there was only one letter picked out of seventy-six ; why were not the other seven- ty-five taken? By Mr. Mclntyre: Q. Why did you give this assignment at this particular time, this assignment to write a very frank letter to Woodrow Wilson? A. That is in- teresting. Q. Why did you give that assignment at this particular time and not at any other time? A. I would like to make one comment, and I am going to answer, if you do not object. The logic of the question is a little unsatisfactory when he 128 says: "Why did you give that at this par- ticular time and not at any other time?" What is the meaing of that? Suppose I had given it at any time, and the next time you would still say why did I not give it at any other time. There must be some time. I would like to say that I still have the list of assignments from the very beginning covering all kinds of interesting subjects, "The Play of. Macbeth," "Henry," and various subjects, and we have not had, and that is the truth which was borne out by the facts in this case, any general social dis- cussion in the class. Of course I can see now- how people who wish to can see a sinister in- tention. Q. Why did you call for frank criticism of President Wilson's conduct of the war? Chairman Whalen: He did not say criticism, he said comment. Q. Why did you call for frank comment? A. By showing you assignments given in the past six years, you will And that one of the words used over and over again in all my assignments is the word "frank" and the word "frankly." It is built upon educational theory, and in numerous assignments of all kinds, letters and compositions, and talks and exchange of topics we have always used the word "frank." Q. Why did you not ask the pupils to make a frank comment; why did you say "Woodrow Wilson"? That is the idea I want. Why didn't you say President Wilson, or the President of the United States; why did you say "Woodrow Wilson," why did you call him by his first name? A. A sense of affection, perhaps; a sense of hu- man fellowship. Mr. Smyth: We all say Teddy Roosevelt. Q. Do you think it is more respectful and deferential to speak of him as Woodrow Wilson 129 than as President Wilson? A, I honestly believe that there is much more sincerity in that friend- ly attitude than in the other attitude. Q. When you and Dr. Tildsley got into a dis- cussion as to the contents of this letter, did you feel that you were likely to get into trouble over that letter at that time? A. When he gave me — Q. When he gave you that? A. That com- plete letter? Q. Wait a minute; when he gave you that let- ter to criticise, did you feel that the culmination might be trouble for yourself? A. I did not think so in relation to that letter, because I had had a previous interview with the principal and our head of the department, and I did not think so. Q. You- did not think it was time to have your^ attitude with reference to the letter thoroughly understood by Dr. Tildsley? A. Yes, as a mat- ter of educational policy, but I — Q. Didn't you think Dr. Tildsley did want that letter to be criticised by you as in the class? A. It was not. Q. Didn't he give you the letter to criticise as you would criticise it? A. I thought you said did I criticise it in the class. Q. Did he not give you that letter to criticise as you would criticise it in the class? A. The written assignment. Q. Didn't you know it was time to let Dr. Tildsley understand your whole attitude with reference to the letter? Or was it a matter of indifference to you whether he thoroughly under- stood your attitude? A. Certainly not. Q. Why didn't you tell Mr. Tildsley that in the classroom you would have condemned the sentiment of that letter, not the mechanical arrangement of it? A. Oh, again, I deny that 130 second assertion, the mechanical arrangement, as being utterly an assertion. Q. Will you admit when you handed back that letter to Mr. Tildsley with your criticism, you did not say one syllable in condemnation of the sentiments of the letter? A. I certainly deny. I said lots in condemnation. Q. What did you say? A. It is all on the paper. Mr. Smyth: He testified. Q. What did you say in condemnation of the sentiments of the letter or in condemnation of the letter as a whole, to Mr. Tildsley? A. The criticisms are summed up. Q. They are what you have written on the let- ter? A. Yes. Q. You did not offer anything else? A. Yes. I will tell you several things. Dr. Tildsley asked, or rather he took the paper after I had finished writing and read it, criticism by criticism, and I sat, there close to him listening. Q. Try ttf be brief. A. I assume that , those criticisms carried their own weight relative to the composition. Dr. Tildsley asked me after the written criticisms, "Suppose the boy read the same letter again?" and I have given my tes- timony on that point, that if the boy were only capable of educational improvement I would put him down as such. I think that is a condem- nation as complete as can be of the boy and of his matter. By Mr. Greene: Q. Would not you rebuke the boy? A. Cer- tainly. You mean an intellectual rebuke? Q. How would you indicate to the boys in the class the decision you had reached? A. Two methods: one, having the fellows criticize vigor- ously his offensive statements; and second, the 131 teacher criticizing vigorously his offensive state- ments; that is the method we have followed for years. There is nothing new about it. Q. You did not say that to Dr. Tildsley? A. There is no doubt in the world, and people agree who are in close touch with this, that if the boy had read the letter in class he would have met with a severe criticism that everybody believes he should have met with. By Mr. Mclntyre: Q. Will you tell me what you mean by an "in- tellectual rebuke?" A. Yes, as coming from myself ? Q. Yes. A. A series of severe criticisms on the sentiments and statements and thinking of the boy. Of course, I am not a policeman. I do not believe anybody expects me to man-handle him. Q. You think it was incumbent upon you to attack the sentiments in that Herman letter? A. In front of the class if the boy had read it, surely. Q. Did you tell Dr. Tildsley? A. He never asked me a question to that point. Q. Did Dr. Tildsley tell you to treat that letter as tiiough it was in the classroom? A. No, sir. Q. Then if he has made that statement he has lied? Mr. Smyth: Now, wait. ^ Chairman Whalen : That will do. By Mr. Mayer: Q. Let me ask a couple of questions which have been suggested: Should an English teacher at this time take a neutral attitude in a discus- sion in an English class on the question of the wisdom of the selective draft? A. A neutral atti- tude? Q. Yes. A. Certainly not. 132 Q. Let me ask you another question. A. May I remind you a moment? Q. Your answer is enougli. Did not tlie use of the word "franli", Exhibit 5, invite the ad- verse comments from those students who had it in their minds to criticise the President's of the Unitfed States conduct of the war? [A. I do not believe so at all, and the evidence of the papers themselves is the best answer. By Mr. Giddings: Q. Mr. Schmalhausen, what in your mind, is the most essential offensiveness in Herman's letter? A. I think the worst offensiveness lies in the utterly brutal misconception of the Presi- dent and his attitude; it is a brutal misconception of the President as a human being and the Presi- dent as an official, and from that flows all the other statements, which imply his tremendous dis- courtesy and his disloyalty. Q. Do you regard the lack of any cordial atti- tude on the part of Herman toward these United States, this American community, as a serious offense? A. Very serious, I do not think I can criticise it seriously enough, and in that other letter. Professor Giddings, you will recall the statement in which he points out in spite of his previous opposition, that he is glad to approve of the President in relation to the autocracy of Germany, and if you will recall my little com- ment on the 'this is a sane attitude", I think there can be no doubt about my attitude on those matters. HYMAN HERMAN, examined on his voir dire : By Mr. Smyth: Q. How old are you? A. Sixteen years. 133 Q. What religious inslruction haYe you had? A. In the Jewish faith. Q. Have you been taught what, it is to testify falsely? A. I have been taught; yes, sir. Q. What have you been taught in that regard? A. That it is a sin against God and against the religion. Q. Have you been told what is the result of a person who takes a false oath; what punishment if any, there is? A. I have been told that there is a purgatory punishment. Q. Do you know what the nature of an oath is? A. Yes. Q. What is it? A. To bind yourself to tell the truth, and you ar,e responsible for every word you say: Mr. Smyth: I submit he is responsible and should be sworn. Mr. Mayer: I agree to that. HYMAN HERMAN, called as a witness on be- half of defendant Schmalhausen, being duly sworn, testified as follows: Direct examination by Mr. Smyth: Q. Herman, you ar,e a pupil in the De Witt Clinton High School, are you not? A. Not at the present time. Q. You were at the time that this letter was written? A. Yes, sir. Q. How long had you been in the class pre- sided over by Mr. Schmalhaus,en? A. I had been — the regular terrn begins about September 11, believe, and I came in about three weeks later. Q. Was that the first tim,e you had been un- der Mr. Schmalhausen? A. The first time. Q. Now, during that time, had you received any teachings from him one way or the other 134 with regard to the attitude of this country as to war questions? A. No, sir. Q. Had that.be,en a subject that had received any consideration in the classroom up to ti^e time of this assignment? A. No, sir. Q. Where had you obtained ideas with ref- erence to the attitude of this country in the war? A. Through my own ideas, I thought about that, and that was a conclusion I came to. Q. You thought of them? A. Yes. Q. Had it been a matter that you talked with other people about? A. No; I never discussed that question. Q. Was it from any readings? A. As far as I know the newspapers I read are not newspapers to give me those ideas. Q. You did not get it from the -newspapers? A. No, sir. Q. What papers had you been in the habit of reading up to that time? A. Th,e Evening Mail and the Evening World. Q. They certainly are patriotic. Any other paper or periodical that you read? A. I read LesUes's and Colliers's. Q. More patriotic papers. Thes,e ideas that found their way from your brain on to the paper were something that you thought of all by your- self; is that it? A. All by myself; yes, sir. Q. Were they suggested by any of your fel- lows? A. No, sir, because I n,ever discussed it with them. Q. Was your mind open to anybody correcting you on such subjects? A. I was wiUing to listen to reason, if I could 'be induced to change my mind. Q. Since you wrote that particular essay, has somebody pointed out how you were in error? A. Nobody in particular, but the books that I read did point it out. 135 Q. The books that you read? A. Tlie books that I read. ' Q. Since that time? A. Yes, sir. Q. What induced you to read books that changed your point of view? A. That was a history book I read this term. Q. The history of what? A. Of Germany. Q. Of Germany? A. Yes. Q. Reading that, that has changed your ideas about the attitude of the United States? A. Yes, sir. Q. How do you feel just now, in sympathy with the United States or as you expressed your- self in the letter? A. I feel inyself in sympathy with the United States. Q. How do you feel toward President Wilson? A. I do riot feel at all the way I expressed my- self at that time. Q. You are sorry you wrote that letter, the letter that you did? A. Yes, sir. Q. What kind of respect did you have, or did you have any lack of respect for your teacher, Mr. Schmalhausen ? A. I had the respect that is due to a teacher. Q. If he had this fetter of yours read in class, and had shown you how you were in error, would you have paid attention to that? A. I po,sitively would. Q. Did you ever hear Mr. Schmalhausen in class or out of class or in any way utter any sentiment that is responsible for your writing that letter? A. No, sir. Q. Did you ever hear him say anything that was against the President or against any officer of the government, or against any policy of the government? A. No, sir; never. Q. Or against the attitude of the United States in the war? A. I have neyer heard him discuss that question. 136 Q. Do you remember being interrogated,- Her- man, after you had written the letter, by some- body? A. I was interrogated on the 13th of No- vember by Dr. Paul. Q. By Dr. Paul? A. Paul, yes, sir. Q. Do you remember how he started his in- terrogation of you? A. He started about my parents, about Poland, I come from Poland, and therefore he wanted to know if Poland would get its autonomy, what kind of government I would give Poland. I told him I would give it the form of government the United States has. Q. Was this after you had thought over the subj.ect and revised your views? A. Yes; after I had thought over the subject. Q. Was anything said about Mr. Schmalhausen by Dr. Paul at that interview? A. Not directly, or as far as I know, indirectly, but Dr. Paul wanted to know whether I would have written in any other teacher's class such a composition. Q. What did you tell him? A. I told him as I felt at the time I would have written it in any teacher's class. Q. No matter who was presiding? A. No mat- ter who was presiding. Q. Do you feel confident that it was no influ- ence on the pai't of Mr. Schmalhausen that made you write such a letter? A. Positively confident. Q. Did anyone else question you about how you happened to write the letter or about Mr. Schmalhausen? A. Dr. Tildsley. Q. On one or more than one o6casion? A. On only one occasion. Q. What did he say, if anytliing, about Mr. Schmalhausen to you? A. Dr. Tildsley wanted to know why I did not have any respect for the President. Q. Yes. A. And, furthermore, he wanted to know the same as Dr. Paul wanted to know, 137 what books I r.ead, and how I came to have those ideas. That is about all I can remember. Q. Did you have more than two interviews with anybody with respect to this matter? A. More than two with Dr. Paul and only one with Dr. Tildsley. Q. Was another interview that you had with Mr. Anthony? A. That was in conjunction with Dr. Paul. Q. The sam,e interview? A. The same inter- view. Q. How long were these interviews in duration of time? A.' It may have lasted somewhere be- tween an hour and an hour and a half each tim,e. Q. Each time? A. And on Thursday, Novem- ber the 15th, I believe it was of somewhat shorter duration. Q. Did they ask you whether Mr. Schmal- hausen had influenced you in writing th,e letter, so that you did write that letter? A. I suppose that is what they wanted me to tell. Q. What did you tell them? A. I told them nobody had influenced me, I would have written it in anybody's class. Mr. Smyth: That is all. Cross examination by Mr. Mayer: Q. Herman, you say that at the time you wrote this letter, for some time previous to it, you entertained in your own mind the sentiments expressed in that letter toward the President of the United States. Is that right? A. Yes, sir. Q. You had been entertaining those sentiments for some time? A. Yes, sir. Q. And this assignment of this subject to write on is what gave you the opportunity to express in your school those sentiments which were re- posing in your mind at that time; is that right? Mr. Smyth: Is not it fortunate that the oppor- 138 tunity was given him, and that he is now a good citizen ? A. The language of the topic was a frank com- ment, and I said what I felt. Q. You, having been asked to give a frank comment, wrote what was in your mind with regard to the President? A. Yes, sir. Q. Do you remember saying to Mr. Tildsley that when you wrote that letter you wrote it because you had complete and utter con- tempt for the President of the United 3tates? A. Yes, sir. Q. You did say that? A. I did. Q. Why did you write that letter? A. For precisely the same reason that I told Dr. Tildsley I felt an utter lack of respect for the President of the United States. Q. Would you write such a letter as this now? A. No. Q. Why not? A. Because now that I have changed my mind, of course, it is out of the question. Q. If you have changed your mind about Ger- many being an autocracy, would you write such a letter again? A. No, sir. Q. If you do not agree with a njan, are you free to write such a letter? A. If I do not agree with any man? Q. If you do not agree with any man or the President? A. Such a letter, you mean the lan- guage? Q. The language of this letter; do you be- lieve that? A. If my contempt for him is of a serious nature I believe I am justijSed. Q. So ther.efore you beheve that at the time you wrote that letter your contempt justified you in writing such a letter to the President? A. Yes, sir. Mr. Smyth: At that time. 139 Q. At that time. That is what I mean; that is what I am asking about? A. Yes, sir. Q. And the theme or subject which was pre- sented to you gave you the opportunity to write that letter. Is not that so? A. I felt so. Q. What you felt? A. Yes. Q. Would you have written this letter in Mr. Loughran's class? A. Had he given me the topic I would have written such a letter. Q. Even though Mr. Loughran had inculcated a spirit of patriotism in his class? A. I do not remember Mr. Loughran having inculcated any special spirit of patriotism. Q. You do not? A. I do not. Q. Would you haye written it in Mr. LapoUa's class ? A. Yes, sir. Q. You would have written it? A. Yes, sir. Q. Have you ever said at any time sinfce you have written this letter anything positive in favor of the policy of the United States in this war? A. Not openly. Q. Not openly? A. I do not remember. Q. Do you entertain any ideas which are positively in favor of the policy of the United States in this war at this time? A. Yes, sir. Q. You do? A. Yes. Q. How do you come to get those ideas? A. By studying the history of Germany. Q. Who gave you that book to study? A. The school, as far as I always understood. Q. You got it in the school? A. Yes. Q. Who was the teacher who gave it? A. They did not give us the book; that is a reg- ular study. Q. In whose class? A. Mr. Delaney's class. Q. Did Mr. Delaney point out any precepts to you from that book for your enlightenment? A. He pointed out the fact that Germany was a complete autocracy. 140 Q. He did? A. He pointed out the other fact that Siam was more of an autocracy than Ger- many was, but Siam is rather small to be re- garded. Q. Did he ever, as your history teacher, point out to you that this is a representative democ- racy? A. Yes, sir, he did. Q. And that has changed your idea of respect for the President of the United States? A. Yes. sir. Q. And for this country? A. Yes, sir. Q. And for this country's conduct in this war? A. Yes, sir. Q. Did you write that note? A. I did. Mr. Mayer: I offer that in evidence. (The paper was received in evidence and marked Exhibit No. 10 of this date.) Mr. Mayer: I will read that letter. "Nov. 21, 1917. Fellow-Students : I am very sorry for the text of my let- ter dated Oct. 22nd, which I now, after much deliberation, consider unpatriotic; I highly regret the terms of address and expressions, which are grossly disrespect- ful, at all times; and it grieves me to know that the school has been unjustly accused of disloyalty because of a few, myself included and seemingly foremost, when your recent response to the Liberty Loan proves this accusation as false. HYMAN HERMAN." 141 "Dear Dr. Paul: If you consider this statement satisfac- tory you may admit Herman after he has read it to the Assembly. No less state- ment is to be accepted. Yours very truly, JOHN L. TILDSLEY. Nov. 22, 1917." Q. Your note addressed to your fellow stu- dents came as the result of the teachings which you imbibed since you wrote the letter to Presi- dent Wilson of October 22nd, 1917, through your history teac^ier in the history class; is that right? A. From the histpry book in my history class. Q. And your teacher there? A. And my teach- er perhaps. Q. Perhaps, do you say? A. He just simply pointed out what was in the book. Q. Did he ever give you any direct instruc- tion in patriotic attitude toward the government? A. No direct instruction. Q. No direct instruction? A. No, sir. Q. But by the general atmosphere of his class and the direction of his course of instruction he corrected your attitude both as to the Presi- dent and the government of this country? A. Being a history teacher he showed us and empha- sisjed the fact that the author tried to emphasize in the book. Q. He emphasized the fact that you found in your books? A. Yes, sir. Q. It was the result of his teaching that you have come to the conclusion which you express in your letter to your fellow students; is that right? A. Yes. Mr. Mayer: That is all. Chairman Whalen: Any other witnesses? 142 Mr. Smyth: No other witnesses; except I want to offer in evidence the By-laws which have to do with the grounds for trying a teacher. I think they are Section 39, subdivision 18. Mr. Mclntyre: "What is that? Mr. Smyth: Section 39 subdivision 18 and Section 41, subdivision 18. Why not put in all the By-laws and then we will use what we want? Mr. Mclntyre: Section 39, subdivision 18? Mr. Smyth: Section 39, subdivision 18. Mr. Mclntyre: What is the other? Mr. Smyth: Section 41, subdivision 18. Mr. Mclntyre: We object to these by-laws be- cause it seems quite apparent from Mr. Smyth's statement that the by-laws are introduced for the purpose of showing that the teachers may be tried for the grounds specified in each of those by-laws, namely, misconduct, insubordination, for neglect of duty, and general inefficiency. Is not that right? Mr. Smyth: That is right. Mr. Mclntyre: We object to them on the ground that the by-laws have been superseded by the statutes, by the last amendment to the Educational Laws, June 8, 1917, and that pro- vides that a teacher may be removed for cause, and the cause is any substantial cause that ap- peals sufficiently to your discretion, and we ob- ject to the by-laws on those grounds. Chairman Whalen: We will take that under advisement. I suppose the testimony is closed. Mr, Mclntyre: The case is closed. Mr. Smyth: We renew the motion to dismiss the charges upon all the evidence, upon the ground that it does "not appear that the charges specified have been supported, and it does not appear that under the authority given by the by-laws and by the statute and by the Charter, Section 1093, that there has been any gross mis- 143 conduct, insubordination or neglect of duty or that there has been any general inefficiency shown. Chairman Whalen: Motion denied. Mr. Smyth: Exception. Chairman Whalen: We will take an adjourn- ment until 8:30 P. M. Whereupon at 7:45 o'clock P. M. on the 3rd day of December, 1917, a recess was taken until 8:30 oclock P. M. NIGHT SESSION. Chairman Whalen: Do you want to discuss before the Committee the evidence? Do you want to sum up? Mr. Smyth: I would not attempt to sum up at this late hour with the continuous session we have had ever since three o'clock this after- noon. I do not think I could do the Committee any good or myself or anyone else good. It seems to me we oUght to do it some other time or else waive summing up. Mr. Mayer: I am perfectly willing to waive it. Mr. Mclntyre: I will waive it. Chairman Whalen : Then you will submit it as it is to us? Mr. Smyth: Submit it ias it is, I rely on my motion to dismiss, which I now renew on all the evidence. It comes within none of the subdi- visions or classifications of the by-laws which I have referred to, and that the matters testitied to or the matters contained in the charges are not the subjects of charges for the purpose of dismissal or discipline of the teachers, and further that the charges as specified have not been home out by the evidence. I suppose the by-laws are in evidence? 144 Chairman Whalen: The reason I referred to it now, was that in the beginning of the trial I said that at the close of the trial if you choose to give us your view on the law of the case we would be glad to hear you. It is only for that reason that I call it to your attention. I know you must be tired after such a long trial. The by-laws have been submitted to the Committee for identification, and if we admit them we will let you know, and if we overrule your offer we will give you an exception. Mr. Winthrop: Is it your idea that the new Educational Law takes the place of the by-laws or the by-laws are still in force? Mr. Smyth: As I understand it the new Educa- tional Law takes effect to the extent of pro- viding for the by-laws to be amended, and until the by-laws are amended those by-laws are still in force. Mr. Winthrop: Your point is that these by- laws are still in force in spite of the new Edtica- tional Law? Mr. Smyth: That is true. Mr. Winthrop: That is your point? Mr. Smyth: Yes. Mr. S,omers: In regard to that, the l^w is^very explicit. I cannot put my hand on the section, but it provides that a teacher may be removed after a hearing for cause. Mr. Winthrop: The point Mr. Smyth makes is that the by-laws specify the grounds upon which you can remove a teacher. Mr. Mclntyre: Wc must have a by-law which is not inconsistent with the statute. Further- more, let us assume that the by-law is in effect, and all these things come under Ihe head of gross misconduct, refusing to serve the United States in this great crisis, the greatest crisis in the history of the world. 145 Mr. Smyth: May I say one word in that re- spect : There is not any evidence from the prose- cution of any act on the part of any of these teachers; there h^s been nothing but an attempt to get up a hypothetical case and ask their opin- ion on a hypothesis. There has been no evi- dence of any kind that in the discharge of their duties any one of these teachers were other than a loyal, honest, faithfhl servant to this com- munity. It is something comparable to the old Salem witchcraft trials, that a person who is supposed to have views that were not in cogniz- ance with the views of the community, are put on trial and asked supposititious questions, not as to what they had done, not as to what their duty requires them to do, but taking a case that is not in point at all, what would you then, do; in other words, you could not get a better ex- ample of trying to set a trap and catch these persons, get these persons into making admis- sions outside of anything they have done, than we have had here exhibited before us in the tes- timony of Dr. Tildsley and Mr. Paul, and the other gentlemen who have testified. So far as the character of these men is concerned, everybody seems to unite that they bear unblemished repu- tations as teachers and as gentlemen. They have done nothing. We may disagree with some of their views, so far as statements of philosophy are concerned, but there is nothing to show that they are unfit, from this evidence, and certainly what they have said is absolutely incognizant with , our ideas of loyalty and patriotism. If these persons had gone on the stand and ad- mitted that their idea was that patriotism should not be taught in the schools, that they were against it, if they were told to, that would be one thing. But you have had them before you. You 146 have heard them cross examined at great length, and they have' told you that so far as their con- duct towards their scholars was concerned, if the subjects were to come up they would be loyal merely because in an inquisition carried on by Dr. Tildsley under circumstances, which it seems to me certainly smack of prejudice and are founded on something else other than specific dis- loyalty, they have managed to extract here and there phrases 'and statements, apparently through faulty recollection, evidences of which Dr. Tild- sley gave us on the stand, qf distorted meaning, it is hardly a fair thing to say that these gentle- men are to be deprived of their liberty and are to go forth stigmatized in this world at this crit- ical time as disloyal citizens, the worst punish- ment that can be meted out. If these men were on trial before a jury in an ordinary court of record there is not any Judge, and I know Mr. Whalen will agree with me, who would permit that kind of testimony to be received to blacken the reputations of these men. If, for instance, Mr. Schmalhausen in class had received this pa- per written by Hyman Herman and had said, "Well, boys, you have heard this statement, I do not disagree with it," and that utterance of his had gone forward to the others, then you would have something to fasten on; then you would have just grounds for saying that that man is unfit to be a teacher because he has given us evidence of it. But nothing of that kind oc- curred. We find that he did not even know about the statement that Herman had made until some two weeks afterwards, when he was shown the statement, not in the schoolroom, not in the presence of boys who were to be taught, but in the inquisitorial chamber. Questioned, and made to say things, according to the in- terpretaion of Dr. Tildsley, which are at variance 147 with the statement that he has annotated on the paper itself. The whole thing is hypothetical. There is not anything real in any of these charges. To say a teacher is to be dismissed on a hypothesis of that kind, it seems to me, is to give countenance to something un-American, unpatriotic and opposed to all our institutions and our ideas of what a trial should be, which only seeks to deal out fairness and not deal out trickery, and to entrap a man. Mr. Mclntyre: May it please the Committee with regard to that: Some of these cases do present issues of fact. Now, the only way that you can decide those issues of fact in favor of these/ teachers is by assuming that Dr. Tildsley, Mr. Anthony and Mr. Paul have entered into the dirtiest kind of a conspiracy against these people without any reason, without any motive that I can conceive. I cannot conceive how you can come to any conclusion other than the fact that Mr. Tildsley and Mr. Anthony and Mr. Paul are telling the truth. You have heard them and you have heard the witnesses, and we are going to let you decide the issues of fact. But remember this. You cannot decide against Mr. Tildsley and the ohers without coming to the conclusion that they hatched a conspiracy against these men. I cannot conceive why they should have done that. Therefore, I feel that you must decide the issues of fact against these defendants. Now, having decided the issues of fact against them, it will become apparent that althoughthey were presented in many instances with hypo- thetical questions, hypothetical situations, it was only through these hypothetical questions that their attitude toward the United States in the present conflict with the German Government could be ascertained. It could not be done any other way. As far as I am aware the course of 148 study did not permit it. There was not anything tangible that afforded tlie educational officers the means or the opportunity of finding out just where these people stood. The only way it could be found out was by presenting these hypothetical situations and ascertaining from their attitude, from the way they would act in these given situa- tions, whether or not they were friendly or un- friendly to the United States Government, in this, the greatest of all crises. Now, having as- certained from their answers that they were hostile to the Government it was a plain viola- tion of the duty which they owed to the State, be- cause in point of fact they do receive their live- lihood from the State, and in these insidious ways seeking to undermine the Constitution of the State, and the Constitution of the State requires every public official to take an oath that he will support the State Constitution and the Federal Constitution. Therefore, if these three gentlemen made these statements which showed they were not in sympathy with the United States Government in this war against Germany, that they were, we might say, disloyal, I think some of the testimony goes that far, they plainly dis- quahfied themselves longer to continue as public school teachers because a public school teacher owes an affirmative and positive duty to work for the State; not an attitude of even passivity, but labors under the obligation of taking affirma- tive steps to protect the interests of the State and Federal Governments. You cannot get away from that. The legal proposition is as plain as can be. Chairman Whalen: We want to thank you gentlemen very much indeed for the very courte- ous way in which you have tried these cases. I feel very grateful to the Corporation Counsel also, and your viewpoints which you have just given 149 us are going to help our Committee in the deter- mination of this case. We understand now that the cases have been submitted to us and we will take them under advisement and render a decision as soon as possible. JHearing in the Above Case Closed. 150 DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK. In the Matter of The Charges of Conduct Unbe- coming a Teacher Preferred by Associate Superintendent TiLDSLEY, against Thomas Mufson, Teacher in the De Witt Clinton High School. New York City, December 3, 1917. Met pursuant to adjournment at 9 o'clock P. M. Before the Committee on High Schools and Training Schools. Present — Mr. Whalen, Chairman. Mr. Atkinson, Mr. GiDDINGS, Mr. Greene, Miss Leventritt, Mr. SoMERS, Mr. WiNTHROP. Appearances : Charles McIntyre, Esq., and Wm. E. C. Mayer, Esq., Assistant Corporation Counsel, for the Board of Education. Herbert C. Smyth, Esq., and R. Wellman, Esq., appearing for Thomas Mufson. President W. G. Willcox and Secretary A. E. Palmer of the Board of Education. 151 Chairman Whalen: The Committee is now ready to hear the case of Professor Mufson. Mr. Smyth: At the outset, if it please the Committee I deem it my duty to present a matter which is exceedingly disagreeable to me, in the first place, because of the nature of the protest that I am about to make, and, in the second place, because I have a very long acquaintance with the Chairman about whom, under all other circumstances in the last twenty-five years that I have had the pleasure of his acquaintance, I could not think of raising such a question; but the pub- lic print and the evidence at our disposal ■leaves no other course open to me. I think I should very much like to leave the matter to the discretion of Mr. Whalen himself, but in view of the public statements made' by the Chairman, and particularly in an edition of the Even- ing Telegram of November 25th last, and in other publications published throughout the City, it has been borne in upon me, as represent- ing these three teachers, that Mr. Whalen has rendered himself unfit to . preside, as a member of this committee, because apparently he comes in as a judge with a prejudice against them, which to my mind makes it impossible to insure, so far as the Chairman is concerned, these gentlemen will have a fair and unprejudiced hearing. , There is much evidence at my command, and which I assume will come out during the course of the hearing, that the genesis of these charges was in a resolution which was passed by the Teachers' Council, which condemned or criti- cized the Chairman's action in utterance which he had made with reference to the prolongation of hours of work of the teachers and school hours of the pupils, a subject which is utterly foreign to the charges, as will be easily seen by reading 152 the charges themselves. It appears that in getting at who should be made defendants or respond- ents in this proceeding that in the course of the investigation the principal inquiry made of the witnesses, including the accused teachers, was not with reference to the particular charges, but the first and important question asked was "Did you vote or have any part in giving light to the so-called Whalen resolution," the resolution which I have referred to which criticised the honorable Chairman. Now, under these circumstances, I respectfully lodge a protest, and I say respectfully, because I have the greatest amount of respect for Mr. Whalen as a lawyer, as an officer, and as a citi- zen, but at the same time, were I in his place I would deem myself equally unfit to act in the dual role of accuser and judge. It is a position which is absolutely opposed to all our democratic institutions. It was one that was guarded against at the time that this Repubic was born, in fact, and it seems to me that as I feel, it must be the desire of all the members of the Committee, in- eluding the Chairman himself, that they shall have judges who are just as impartial sitting here with regard to these gentlemen, as would be the case if they were to be tried in a court of record down in the court hquse where Mr. Whalen has often graced the bar at that tribu- nal, and under these circumstances I now make a formal protest against Mr. Whalen acting as chairman. Mr. Mayer: If the Committee please, the pro- test which my learned adversary has so suavely lodged does not seem to me to be at all in point. He speaks of your Chiairman as the accuser. Of course the Committee knows that neither the' Chairman nor any other member of this Commit- tee perferred these charges. They come from an 153 entirely diflerent source. He is the judge, it is true. We have understood for some time that some such claim as is now made was going to be made against the honorable Chairman of this Committee. We do not believe that it is perti- nent. We do not believe that the law as it is generally understood will view with displeasure the sitting of Mr. Whalen as a .rtiember of this Committee. Here he is acting as a public of- ficial. He is sworn to do his duty. The law de- mands that he will do his duty to the fullest ex- tent, and with justice and without malice to- ward the accused. It lies wholly within Mr., Whalen's conscience Whether or not he sits in this- Committee. He cannot be ousted from this Committee by a protest of this kind, which is far afield from the matters which will come up for judgment here. I therefore urge that Mr. Whalen, in accordance with the dictates of his own conscience, remain and sit as a member of and Chairman of this Committee. Chairman Whalen: I appreciate very much Mr. Smyth's position and recognize that it was his duty of course to make the objection; I know there is nothing personal about it at all. Mr. Smyth: Not at all. Chairman Whalen: Not at all. I submitted the matter to my Committee and they cannot see any reason in the world why I should not sit. I never expressed an opinion in the cases now be- fore us and I am not aware that 1 have ever mentioned the names of the defendants. I gave a correct description of the kind of teacher that I thought ought not to be in the school, and of course if you admitted that that description fitted your client, then I would have to admit that I have expressed an opinion which might be taken as being opposed to them. If they do not fit the 154 description then of course no harm has been done to your clients, because their names were never mentioned. However, your objection is overruled and you may have an exception. Mr. Smyth: That our position may be cor- rectly understood, Mr. Chairman, the views ex- pressed by you in the abstract have my hearty concurrence. It is because of information that has come to us that you have attempted to ap- ply those views to the three teachers, or we fear that this testimony points in that direction, that I filed a protest. If the description were to fit my clients I would not be here defending them. Ghairman Whalen: Therefore, it is quite clear that whatever I may have said does not apply to your clients, in view of the statements you have just made. Now, Number 2 and Number 3 of your affirma- tive defense are overruled, and you may have an exception to those, so that narrows the issue right down to the specific charges that have been made by the City Superintendent against your clients. I sincerely hope, and the Committe hope, that you gentlemen, Mr. Smyth and the other counsel, will try this case without any feeling at all, try it in an orderly and dignified way as you always try your cases in court and where you can stipulate in regard to testimony so as to shorten it, and we will be glad if you will do so. Mr. Smyth: I will do everything I can. Chairman "Whalen: At the close of this- and the other trials, if you feel you would like to argue the legal appliciition as to the questions of fact brought out in the trial we will be very glad to hear you. 155 Mr. Mclntyre: We will now proceed with the Mufson case. Chairman Whalen: Yes. Mr. Mclntyre: These are the by-laws of the Board of Education showing the jurisdiction of this Committee. I offer them in evidence. Chairman Whalen: I ask you if your clients have any objection to reporters being present in the room? They have requested permission to be here, t Mr. Smyth: We have not. We leave that to your Honor entirely. Clhairman Whalen: May I ask Mr. Smyth if you will agree that the pupils from the, school who have been subpoenaed here may be excused from the room during the trial? Mr. Smyth : If your Honor thinks that is the better course. Chairman Whalen: All the pupils subpoenaed here will please leave the room and the officer will take care of them in the meanwhile until they are called as witnesses. In order to shorten this trial we think that maybe you can agree with the Corporation Coun- sel that the question here to determine is, not what took place before or after, but just what took place on this day, that it will help. Mr. Mclntyre: I offer in evidence certified copy of Section 13, Subdivision 7, of the By-Laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 1 of this date. Mr. Mclntyre: I offer in evidence certified copy of Section 21, Subdivisions 4 and 5, of, the By-Laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 2 of this date. Mr. Smyth: As I understood the Chairman 156 to say, he asked me to stipulate that what we were to try is whether the charges that are made hap- pened on the day intended or mentioned. Chairman Whalen: No, I mean these inter- views that were said to have taken place. Mr. Smyth: May that be specified? Mr. Mayer: We will bring the date out in the testimony. Mr. Mclntyre: I offer in evidence the charges and specifications in the case of Thomas Mufson, served personally on Mr. Mufson on November 19th, 1917. Service is conceded? Mr. Smyth: Yes. The paper was received in evidence and marked Exhibit No. 3 of this date. Mr. Mclntyre: Mr. Smyth, I presume you want the answer in? Mr. Smyth: Yes. The paper was received in evidence and marked Exhibit No. 4 of this date. Mr. Smyth: The Committee makes the same ruling with regard to defejQses 2 and 3? Chairman Whalen : Yes, and we give you an exception. Mr. Smyth: Exception. JOHN L. TILDSLEY, called as a witness, be- ing duly sworn, testified as follows: Direct examination by Mr. Mclntyre: Q. Mr. Tildsley, you are Associate Superintend- ent of Schools? A. I am. Q. And you know the defendant, Mr. Thomas Mufson, the gentleman on trial here? A. I do. Q. Is he a teacher in the De Witt Clinton High School? A. He is. Q. Have you recently had a conversation with him? A. I had a conversation with him on the 157 day before Election, On the 5th of November, I believe it was. Q. Who was present besides yourself and Mr. Mufson? A. Mr. Paul was listening to the con- versation. Mr. Anthony sat at the other end of the room. Q. Mr. Paul is the principal of the school, is he? A. He is. Q. Where was this conversation held? A. In Mr. Paul's office. Q. Do you remember the substance of the conversation? A. The substance of the conversa- tions, as I remember, was about as follows: This interview took place after the interview I had had with Mr. Schmalhausen, at least one interview, and I opened the conversation with Mr. Mufson that alluding to the fact that 'he was a teacher of English, and in the English classes in the school they gave a great deal of attention to the matter of oral English, and the matter of discussion of topics in the recitation, and I there- fore submitted to him a hypothetical question, the question being as follows: "If the question of whether anarchism or whether the present form of government of the United' States was better for the people of the United States, was being dis- cussed, and you found that the boys in your class who favored anarchism were the better debaters, and that that side was prevailing, would you feel it incumbent upon you to take any action in the mat- ter?" And he said he would not, he would rehiain neutral in the discussion, but he added "I would not allow that subject to be discussed." I then went, on to a second question, namely, that if groups of boys in your class were dis- 158 cussing this question, namely, the wisdom of an early peace, the purchase of Liberty Bonds, and the active support of the Government in its vari- ous measures for carrying on the war, if you found that the boys who favored an early peace, who were opposed to the purchase of the bonds, and who were opposed to an active support of the Government in carrying on the war, were getting the better of the discussion, would you in that case feel called upon to take any part in it, and he said, "No, I would remain neutral in this matter," and we discussed that general position at some length, and then I said to him, that you tell me that you do not make your views known to the boys, and never- theless, although you have made no statement to this effect, I have drawn the inference that you are opposed to active co-operation with the Government in the conduct of the war, that you are opposed to any co-operation in the sale of Liberty Bonds, and in favor of an early peace, and he looked me in the eye and said, "I have made no such statement." I said, "No, you have not, but I have drawn the inference and I am going away with that inference." He looked at me and shook his head, and that was the end of the interview. Mr. Mclntyre: That is all. Cross examination by Mr. Smyth: Q. What were you trying to do. Doctor, trying to trap him? A. I was not trying to trap him; I was trying to — Q. You have answered. You have said you were not trying to trap him. Why did you say that you were going away with an inference' that was not justified by anything you have told us here? A. I believe the inference was justified, and told him so. 159 Q. And he shook his head? A. No, he did not shake his head. Q. Didn't you say he shook his head? A. I did not say which way he shook his head. Q. As I am doing it, this way; is that yes or no; is that shaking my head? A- It depends en- tirely what the expression of your face was. Q. Was he sliaking his head from right to left? A. It was a very slight shake. Q. Was it not shaking his head from right to left? A. I do not remember. Q. If he was moving his head up and down he would be nodding, would he not? A. He would. Q. He did not nod? A. He— Q. He did not nod, did he? A. I do not re- member whether he nodded or not. Q. You said he shook his head. You know the difference between shaking his head and nodding, do you not? A. I have not a photo- graphic memory of the exact angle at which he shook his head. ' Q. When you sa.y a man shakes his head, what do you mean; that he means yes or no? A. It does not necessarily mean that he means either. It means that you have me. Q. What? A. It might sometimes mean that I cannot meet your argument, you have me. I told him I had drawn an inference and he shook his head in a doubtful sort of way, as if he felt I had drawn an inference and that he could not deny it. Q. You think that this man should lose his means of livelihood on the shake of his head? A. No, sir. Q. That is all your testimony amounts to, is it not? Mr. Mayer: I object to that; the witness has not testified to that. A. Do you wish me to state what I do think? 160 Q. You seem to be so utterly unfair that I do not think that I do. If he had nodded his head then you would have something to say, would you not, Doctor? A. Not any more than I have. Q. Now, did he satisfy you when he said he would not allow the subject of anarchism to be debated? lA. No, sir. Q. He did not? A. He did not. Q. Do you think that boys of that age should be permitted to debate on the subject of anarch- ism? A. No, sir. Q. Then didn't he do what you think he ought to do, not allow it? A. That was not the point at issue was what- I — Q. Now wait a minute. Doctor, you are not in- terested in having this man discharged, are you? A. I am interested. Q. You want him discharged? A. I do want him discharged. Q. Then you are an interested witness? A. I am interested in my capacity as Superintendent of Education. Q. You are determined to do everything you can to hurt this man? A. No, sir. I am deter- mined to tell the truth. Q. You won't give an exact interpretation to an act such as shaking his head, if you can help it, will you? A. Oh, yes. Q. Didn't you assume that he gave you a negative answer when he s^ook his head? A. Be- cause he did not. Q. Because he did not? A. Yes. Q. You are going to make an affirmative out of a negative then? A. I am not. Q. You do agree that anarchism is not a sub- ject to be discussed by boys of that age, do you not? ^. Yes, sir. Q. And in that respect you have agreed with Mr. Mufson? A. In that respect I do. 161 Q. That is the main thing with regard to whether he is a proper teacher on such a sub- ject as that, as to whether he would allow an improper subject to be debated, is not that so? A. No, sir. Q. That is not the main thing? A. That is not the main thing. Q. The main , thing is to find out if he allowed something which he did not intend to allow, what would he then do if he were to do that? A. That is too complicated for me. State it more simply. Q. Is not that the complicated attitude of your mind toward this man? A. No, sir; my mind is not at all complicated. Q. Were you not trying to trap him. Doctor? A. I was not. I was trying to get his honest statement of his philosophy of con-ducting a reci- tation. Q. Why did you get his philosophy about some- thing which you both agreed should not be dis- cussed? A. When I asked him the tjuestion we had not agreed on it. Q. Mentally you had agreed with him, had you not? A. The question had not come up until I asked it. Q. But it did come up and you found that you both agreed on that subject; why did you try to trap him any further? A. We did not both agree. Q. Did you not say a moment ago that he said he would not allow anarchism to be debated? A. Yes, sir. Q. You understood by that that he considered that an improper subject to be debated? A. I do. Q. In that, you consider that he gave expression to an opinion that should be lauded? A. To that extent; yes. Q. Is not that the important extent? A. No, sir, it is not. 162 Q. Of what particular avail is it to find out what his view is about something that never could happen if he lived up to his idea not to allow anarchism to be debated? A. I got ex- actly — Q. What you wanted? A. What I wanted to get from the man, and that was what his method . of conducting a recitation was, and he said that he would remain neutral in a discussion of that kind. Then he realized that that particular ques- tion was not the kind of question he believed in giving and he stated his general attitude in an- swer to that. ' Q. Do you mean to say that he was not sincere when he said he would not allow anarchy to be debated? A. I do not believe so. Q. Do you believe he was sincere? A. He was sincere, I believe. Q. Did you ever find him to be insincere in anything he ever did? A. No, sir. Q. Is there any more sincere teacher in the employ of our Government than this Mr. Muf- son? A. I cannot answer such a question as that. Q. Do you know of any? A. I cannot answer such a question as that. Q. Won't you do all you can in his favor, so long as it complies with the truth? A. I have si^id that this gentleman is sincere. I am not going to make a comparison between him and 22,000 other teachers. Q. Do you/ know of any act of insincerity on his part that you can point to? A. No, sir. Q. Do you know of any which would condemn him as a teacher? A. Only in connection with this? Q. Yes. A. Yes, I do— Q. Was that the act of a teacher? A. That was the act of a teacher, yes, sir. Q. This conversation that you had with him in 163 private on a subject on which both you and he agreed was an objectionable subject, do you think that was the act of a teacher? A. I do. He was asked in hii4 official capacity by an official of the Board of Education about his method of con- ducting a recitation in a public high school. Q. On a subject that both you and he agreed should not be broached? A. I did not agree it should not be broached. Q. Didn't you just tell me a little while ago that you agreed that it shoud not be broached? A. Should not be discussed in the classroom, which is an entirely different question. Q. Now, Dr. Tildsley, with all the fairness that you are capable of in this particular, and it is only in this particular that I am addressing it to you, can you give anjr instance to this Com- mittee where, in teaching, this gentleman has ever failed in his duty? A. I cannot. I am not familiar with his career as a teacher. Q. Don't you know his record? A. No, I do not know his r.ecord. Q. Have not you looked them up ? A.I have not looked them up recently, no. Q. Are you going to condemn this man to loss "of position without looking up his records? A. I do not condemn him. Q. You say you want him discharged. Have not you looked him up to s,ee whether he is worthy of discharge? A. The question of the record does not enter into the matter in my opinion. The question is on the fundamental method of conducting a recitation in English in the De Witt Clinton High School. Q. Then as I have it, you, as Superintendent of High Schools, think that a man's record counts for nothing in determining the question whether he should be discharged on charges? 164 A. If he has ideas of his duty to the Government it counts — Q. "Will you answer the question? A. I have answered. Q. Please repeat it. You have not at all. Will you read it? Mr. Mclntyre: I object to the question on the ground that it is incompetent, irrelevant and im- material. If the changes on which this gentle- man is being tried are sufficient his r,ecord be- comes immaterial. I object to the question. Chairman Whalen: Go ahead, Mr. Smyth. Q. Now, will you answer the question? A. Does the Chairman direct ni,e to answer that question ? Chairman Whalen: Yes. Answer if you can. The Witness: I will answer it as I answered before, that it is not comparable with the ques- tion of his vi,ews at the time of war as to his duty to the boys of this age. Q. Now, Dr. Tildsley, you are still fencing? A. All right. I have answered the question. Q. I ask you to answer the question I submit. Mr. Mclntyre: I submit he has answered. Chaii-man Whalen: He cannot answer better than that. Mr. Smyth: He can say whether the record should be taken into account or not. I am ad- dressing this to the Chairman. Do you think that a faithful, sincere, honest, capable teacher's record is not to be taken into consideration in determining what his course of conduct should be under a supposititious case, which the ac- cusing witness admits was a case which would not come up? Chairman Whalen: You may argue that when the case is clos,ed. Mr. Smyth: I did not think there was any an- swer to it. 165 Chairman Whalen: It is my understanding he is talking about his attitude on a certain ques- tion on a certain day. Mr. Smyth: Yes. Chairman Whalen: He interrogated him and there is his answer. . Now, is that answer suf- ficient to justify the charges made? That is all there is to it as I see it. Mr. Smyth: Do you mean to say that this Com- mittee would not take into consideration the previous record of a teacher? Chairman Whalen: Yes, they will take into consideration that record. My Smyth: All right. By Mr. Smyth: ' Q. Now, with that concession of the Chairman, will you admit that the record is an important matter? Mr. Mclntyre: I object to that on the ground lhat.it is immaterial, incompetent and irrelevant. Chairman Whalen: Yes. I do not think you ought to do that,' Mr. Smyth. I think if a Trial Judge said that, I think you would be perfectly satisfied, Mr. Smyth. Mr. Smyth: Yes, I am, but I wanted to bring the other question out. Chairman Whalen: He has nothing to do with the records. The Witn,ess: I have nothing lo do with the record in this case. Mr. Smyth: What I want to find out is this: This witness has said he was anxious to have this teacher discharged, and therefore I want to find out how fair he is in the matter, whether he has ever looked at the matter favorably. Chairman Whalen: He made the charges un- der direction of the Superintendent. 166 Sir. Smyth: I know that, but he goes further than that. He wants to see him discharged. By Mr. Smyth: Q. That . is true, you want to see him dis- charged? A. As an official of the Board of Edu- cation, only for that reason. Q. But in any role you please, you still want to see him discharged? A. Yes, becauS;e I be- lieve he is unfit to teach the boys in the De Witt CHnton High School in this time of war; yes, sir. Q. Because he r.efused to answer with voice what he may have answered with gesture, a sub- ject on a hypothetical question anyway which could not arise, because you both agreed it was a subj.ect which was forbidden? A. Not at all. Q. Is not that what your testimony amounts to? A. No, sir. Q. You do not think so? A. That is not the testimony. Q. You say that you asked him whether he was in favor of early peace? A. I did not. Q. Did you mention that subject? A. I did. Q. In what respept do you now say you men- tioned that subject? A. I told him that I had drawn the inference that he was in favor of an early peace. I did not ask if he was in favor of an early peace. I told him that I had drawn the inference from his own attitude in the matter. Q. Assuming that he is in favor of an early peace, should h,e be discharged for that? A. I should say yes. Q. Are you in favor of an early peace? A. I am not. Q, You are in favor of prolonging the war in- definitely? A. I am not. Q. Then it is one or the other? Which is it? Do you want an early victorious peace? A. I do. 167 Q. Then you want to see an early peace? A. Not necessarily. Q. I do not quite get you. Are you a loyal American citizen? A. I am. Q. Then you do want to see an early peace, do you not? A. Not necessarily. Q. Well, but you — A. What is the use of ar- guing that? Q. Because I want to see how — show you how unfair you are. A. I am not unfair. I want a victorious peace as early as it can be brought about. Q. Is ther;e anything he said that was different than that? A. Yes. Q. What? A. He wanted an early peace whether it was victorious or not. Q. Did he say that? A. I— Q. Did he tell you that? A. I do not believe he said it in those words, I iio, sir. * Q. Did you, in your direct examination, say anything of that kind ? A. Not in that language ; no, sir. Q. Have you not just thought of it when I put the word "victorious" in your mouth? A. No, sir, we both had in mind, or at least 1 had in mind, the idea of a peace such as the United States Government was working for. Q.. Did you call his attention to the fact that you w.ere inferring that he desired an early peace without victory? A. No, sir. Q. Then. why should you assume that he want- ed an early peace without victory? A. By the context of the conversation, Q. And that context you have given us? A. Not all of it. Q. Why did you not give us all? A. I gave you the main things as I remembered them. The conversation lasted about half an hour. I have not reproduced it all. 168 Q. Has anything been said in that conversa- tion about a victorious United States, a victorious peace? A. Not a word as to victorious, because the instance was the boys in the classroom dis- cussing a movement in favor of peace. Q. You have answered the question? A. No, I have not. Q. You have and I am going to ask another one. It is true, is it not. Dr. Tildsley, that you want an early peace? A. No, it is not true. Q. 'Then you want a prolongation of this world misery, do you? A. To a certain .extent; yes. Mr. Smyth: Thank you, that is enough. FRANCIS H. J. PAUL, called as a witness, be- ing duly sworn, testified as follows: Direct examination by Mr. Mclntyre: Q. Dr. Paul, you are the principal of the De Witt Clinton High School? A. Yes, sir. Q. The defendant is a teacher in that school? A. He is. Q. A teacher of what? A. A teacher of Eng- lish. Q. Were you present at the conversation be- tween Dr. Tildsley and the defendant? A. I was. Q. When was that conversation held? A. No- vember 5th. Q. Where? A. In the office of the principal of the De Witt Chnton High School. Q. Wh,en was it held? A. November 5th. Q. Do you remember the substance of thai conversation? A. I do. Q. Between whom was that conversation car- ried on? A. Dr. Tildsley and Mr. Mufson. Q. And do you remember anything that was said with regard to this discussion on tl^e relative merits of anarchism and the established form of Government? A. Yes. 169 Q. What was the substance of what Dr. Tilds- ley was trying to find out? A. As I saw it, what Mr. Mufson considered his duty to be from the regulative side of the teacher's function in mat- ters of conduct. Mr. Smyth: I object to this. May he not state the conversation? Q. State what Dr. Tildsley said, and what he said to Dr. Tildsley? A. Dr. Tildsley began the conversation, as I recollect it, with the state- ment: "A question has arisen as to the proper attitude of k teacher in the conduct of a class in oral composition, and I would like to have your point of view." And in the course of the conversation. Dr. Tildsley asked Mr. Mufson, whether, in the case of a debate — not a debate, but in case a discussion arising in the course of the oral composition work, as to the relative merits of anarchism and our present form of government, should come up before the boys, and those who favored anarchism seemed to be winning the discussion, did he, Mr. Mufson, feel it incumbent upon himself to take any sides in the matter. Mr. Mufson stated that he did not. He stated that he believed in free discussion, that any mistakes the boys might make would be corrected by the other boys in the class. The discussion continued, and Dr. Tildsley asked him whether in case an oral composition lesson was had on the merits of Liberty Bonds and a vigorous conduct and prosecution of the war, and thf boys who were opposed to the purchase of Liberty Bonds and in favor of an early peace were apparently winning the argument, did he, Mr. Mufson, feel that he should correct or lend his aid to the boys who were being defeated in the discussion; and toward the close of the con- versation, Dr. Tildsley said, "You have — " Q. Wait a minute. When Dr. Tildsley asked 170 him if he thought he was to offer his weight on one side or the other, what did he say? A. He said, "No." He said he thought his position should be a neutral one, and toward the close of the conversation Dr. Tildsley said that "You have left the impression with me that you do not favor a vigorous prosecution of the war, you do not favor the sale of Liberty Bonds," and Mr. Mufson said that he had no right to draw that inference because he was not acquainted with the factSi and that is about as much as I recollect of the instance. Mr. Mclntyre: That is all. Mr. Smyth: No questions. Mr. Mclntyre: That is our case. Mr. Smyth: I move to dismiss the charges on the ground" that the evidence brings the case within none of the grounds that are specified by the by-laws or the statute permitting the discharge of a teacher or his being disciplined or punished, and also that the specific charges contained in the written specifications have not been borne out by the evidence. Mr. Mclntyre: With regard to that, the point at issue is whether or not a public school teacher who works for the City of course, and indirect- ly for the State, who is paid by the City, in instructing the pupils, the future citizens of the State, it is his duty, whether he labors under the active duty of directing their ideas in proper channels, namely, in upholding the form of government, in upholding the United StE^tes Constitution, or whether he labors under the ac- tive duty of upholding those things, or in con- sideration pf the money he receives for his serv- ices he is supposed to sit in the classroom like a "bump on a log" doing nothing, and allowing the ideas of these boys, these pupils, to run in 171 their .own channels, whether they may be er- roneous or not. Chairman Whalen: I do not think there is any need of taking any time on that. Mr. Mclntyre: We simply want our point of view to be made clear to the Committee. In other words, the issue in this case is this: Has the teacher in the classroom not an active duty to perform? Is he there to see that the pupils have right ideas about public questions, about loyalty, toward government, and their loyalty to the established order, or when it is apparent to him they are receiving misconceptions, is it his duty to correct the misconceptions or allow them to go uncorrected ? Our idea is that it is his duty to correct them. Chairman Whalen: The motion is denied. Mr. Smyth: Exception. THOMAS MUFSON, called as a witness, being duly sworn, testified as follows: Direct examination by Mr. Smyth: Q. Mr. Mufson, how old are you? A. 33 years. Q. You were born in Russia, I believe? A. I was. Q. How old were you when you came to this country? A. I think about five or six years. Q. You are a citizen of the United States? A. I am. Q. You became such when you were how old? A. I became a citizen through my father taking out his papers. Q. Your father became naturalized? A. Yes, sir. Q. And then you became a citizen? A. Yes. Q. You are of the Jewish faith, are you not? A. I am. 172 Q. You are what is familiarly known as an orthodox Jew? A. I am. Q. You believe in the Mosaic Dietary laws, do you not? A, I do. Q. Will you please explain what they are with reference to the subject of anarchy? A. You mean what? Q. Do they countenance or are they opposed to anarchism? A. Anything that upholds gov- ernment is opposed to anarchism. Mr. Mclntyre: Now, Mr. Chairman, " the only issue here is whether he made the statement that these gentlemen have testified he did make. What his religion is or what his actual beliefs may be I think is immaterial.. The question is did he say these things on this day. Chairman Whalen : That is what we think Mr. Smyth. Mr. Smyth: Of course, but to show the im- probability of making the statements " certainly must be relevant to show such evidence. Chairman Whalen: What his religion is has no place here. Mr. Smyth: Will not your Honor allow me to put in the record whether or not his religion is opposed to the idea of anarchism? Chairman Whalen: He said that. Mr. Smyth : He has not been allowed to say it. Chairman Whalen: Didn't you say just now that your religion was opposed to anything like that? Didn't you answer that question? The Witness: Well- Chairman Whalen: Read just what it was. Mr. Mayer: 1 thinks that Mr. Mufson said that anything that upholds our Government is opposed to anarchy, or words to that effect. Mr. Smyth: All right. 1 wish to have that brought out Chairman Whalen asked liim that again. 173 By Mr. Smyth: Q. You • understand what I am asking? A. Yes. Q. Please answer? A. Of course the Jewish rehgion upholds government. Q. And is opposed to anarchy? A. Naturally. Mr. Smyth: Do not get angry with me. I only want to get the record straight. I now wish to offer in evidence, without having the papers here, the record of this gentleman in the Board of Education. Will the Committee take notice of it anyway? Chairman Whalen: Very well. By Mr. Smyth: Q. Do you remember the interview that you had with Dr. Tildsley on the date that he men- tions when Mr. Paul was present? A. I re- member the substance of it. Q. Now, you have heard what Dr. Tildsley says, and Dr. Paul's testimony. Will you please state your version of the conversations? A. I have that interview typewritten. Q. Did you make a memorandum of the inter- view? Did you know that it would be made the subject of investigation or did you think of it at the time? A. I had not the least idea why that conversation was held. Q. When did you make a memorandum of it? A. A few days afterwards. Q. You heard about it? A. I saw that that was going to be used. Q. Then did you, from your fresh memory, at that time commit to paper what that interview was? A. Yes. Q. Can you state it without refreshing your recollection? A. Yes. You mean without read- ing it? 174 Q. Yes. A. Oh, yes, I can. Q. Then state it. A. I want to make a pre- liminary statement, that the account given by Dr. Tildsley does not accord with the account that I am going to give. Mr. Mayer: I object to that. That is imma- terial. Let him state what the conversation was. Mr. Mclntyre: State what it was. Mr. Smyth: Go right ahead, Mr. Mufson. A. (continuing) : Dr. Tildsley began by asking questions about the effect of oral English in the classrooms and I told him I thought discussion by the boys was very good, because it gave them an understanding of tlieir own mental powers and of their own mental lack of power. Then he led me on and asked me whether I allowed freedom of discussion in the classroom. I said. Yes, I thought it was good. "If you saw a boy, or if some of your boys," said Dr. Tildsley, "up- hold the wrong side of a question would, you feel it your duty to impose your views upon the boys in order to correct them?" I said, "No." "Well," said Dr. Tildsley, "what would you do?" "I would give the boys all the facts I could find on both sides of the question." Then asked Dr. Tildsley, "Suppose the boys were discussing anarchism in your room, would you give them both sides of that question or the facts that you found on both sides of that question?" My answer was that I would not permit them to dis- cuss the question of anarchism because their minds are not mature enough. That was all there was to that. Mr. Mclntyre: Was that the whole conversa- tion? The Witness: No. Dr. Tildsley asked me either, I am not exactly sure, whether I was in favor of the Bolsheviki of Russia, or whether I would permit my boys to speak in favor of the 175 Bolsheviki of Russia, and as that word was used by the newspapers and by people with all kinds and shades of meanings I asked Dr. Tilds- ley to tell me how he meant, what he meant by the Bolsheviki, then I would answer that ques- tion. I did not get an answer. Another question Dr. Tildsley asked me was this, if there were a king in a land, in this land, or a land, I am trying to be as exact as I can, and my boys did not have, that is my schoolboys, the boys of nly class, did not have the respect for him that was his due by virtue of his office, would I not think it my duty to inculcate respect into those boys even if I had to knock it into them? And I said "No." He asked me whether I favored the American form of government or the German form of government. I could not see the purpose or the meaning of a question like that. I did not know, I could not fathom his meaning, what was in his mind to ask a question like that. I said of course I favored the American form of govern- ment. Then he went on to say, this is something else that puzzled. me. I could not understand. "Sup-r pose a man went from here to Germany, what do you think," meaning me, "would be his at- titude toward the German form of govern- ment?" I could not tell how I could possibly be expected to know what a man's attitude toward the German government would be. Still I thought that he would not like the German form of government. "Suppose he did," asked Dr. Tilds- ley "suppose he did like the form of German government?" That was beyond me. He then questioned me "Although you have not told me" — no, he first asked me for my attitude on the war, and added before I could give an answer "You do not have to answer this if you do 176 not want to." I took him at his word and did not answer him. Then he said "Although you did not give me an answer as to your views on the war I know your attitude on the war, you are opposed to the war 1 can tell," he said, "from your general behavior here," and I answered him "You have no right to make that inference; first I would talk to you as I would not talk to boys, and your queries are very, very fal- lacious, and secondly, your inferences may be very, very wrong. In a discussion on freedom of discussion in the classroom, I said, I believed in letting the boys discuss both sides of the ques- tion, that I would not impose, that is the word that was used, my views. "Would I let my boys discuss the Liberty Bond question," I said, "Yes," and Dr. Tildsley said "That is enough." How- ever I had time enough to add "I would let them discuss all controversial question." Then said Dr. Tildsley, "You think Liberty Bonds is a controversial question." I said, "Yes," and that ended the interview. By Mr. Smyth: Q. That ended the interview? A. That ended the interview. Q. Now, at the time when he asked whether you would allow the boys to discuss the subject of respect toward "the ruler, and would you not correct a boy even to the extent of knocking it into him, and you answered no, what did your "no" refer to? A. Well, first, to knocking it into them. Q. As a matter of fact corporal punishment is prohibited, is it not? A. I believe so. Q. You had in mind that whatever assistance you could be in bringing the true facts out on any subject, you would tell the boys the true facts 177 on either side, if there were true facts on both sides? A. Yes, sir. Q. Have any of these matters, as a matter of fact come up in the oral arguments in your class? A. "What matters do you refer to? Q. Anarchy, for instance? A. No. Q. Conduct of the war? Mr. Mclntyre: There is no claim it was dis- cussed, Mr. Smyth. A. I want to say, Mr. Smyth, that I have firmly decided to dwell only on the charges and nothing else. Q. Now, with regard to your attitude on the war, have you written a letter on that subject to the press before these charges were made? A. Yes, sir, I have. Q. Have you got that article with you? A. Yes. Q. When was this written? A. That appeared in the Globe of April 5th. Q. It is dated March. Mr. Mclntyre: I object to it on the ground that the only point at issue is' whether or not he made these statements to Dr. Tildsley. Mr. Smyth: This goes to the probability of his making them. Chairman Whalen: Are you sure that was in the Globe? Mr. Smyth: Yes. Chairman Whalen : The other was the Mail and World. I am very glad you got the Globe in. Mr. Smyth: We are trying to get all the pa- triotic papers. We will get the Times and Sun and Telegram and all the re^t of them. By Mr. Smyth: Q. Does this article, dated March 29th — or rath- er was this article that I hold in my hand under 178 date of March 29th, written by you? A. Yes, sir. Q. It was written over the name of M. Thomas; was that a nom de plume of yours? A. Yes. The Globe has my name. Q. The Globe has the original with your name? A. Yes, sir. Q. And at all times since that time and up to the present time does it represent your views of the war? Mr. Smyth: I offer it in evidence. Mr. Mclntyre: I object to it on the grounds it is not within the issues, if the committee please. Chairman Whalen: We will admit it. "The paper was received in evidence and marked Exhibit A of this date." Mr. Smyth : This is headed "His Third Proph- ecy." It reads as follows: HIS THIRD PHOPHECY. Editor Globe: When Roumania first joined the allies I sent you the following prophecy: I said Roumania, because of its treachery to the Jews, would suffer the fate of Serbia. I further said that a few more blows delivered by Germany against Russia would send the Russian autocracy staggering to its death. Both of these predictions have been fulfilled. Now let me once more assume the role of prophet. Revolution is about to strike again and this time it is going to strike in Germany. Reborn and glorious Russia, Republic France, and Liberal England, an invincible triumvirate of freedom, will veiy soon deliver a death blow to autocratic Germany. The kaiser and his war-hawks are doomed. At the psychological mo- 179 ment — and that moment is very near, nearer than the world imagines — the Ger- man people will rise like a storm and sweep from rejuvenated Europe the kaiser and his band of ruffians, who call them- selves the "government" of Germany. No power on earth can keep that cleansing storm from bursting over Germany. A good and far-seeing Providence has staged the fearful, but beneficent events which are now awing Europe. The divine purpose of the European war is clear. ' Kaiserism is tumbling to the earth to mingle its re- mains with the cursed debris of Russian czarism. The word of the Lord has gone forth. M. THOMAS. New York, March 29." Chairman *Whalen: March 29th? Mr. Smyth: Yes, March 29th of this year. The Witness: Yes, dated, or rather it appeared April 5th. Chairman Whalen: Is that all Mr. Smyth? Mr. Smyth: Yes. Cross examination by Mr. Mclntyre: Q. Why did you write under a nom de plume? A. I would like to know what that has got to do with the things I am charged with. Q. You happen to be the witness. You were not ashamed to put those sentiments over your own signature, were you? A. No, of course not. Q. Why did you write under a nom de plume? A. I did not care to have my name in the papers as though 1 was seeking notoriety. Q. You are quite sure that you were not ashamed to have your name in the papers as favoring the war? A. No, quite sure. 180 Q. To write a letter to a newspaper predicting the ultimate success of the United States in this war: Do you think there is anything for a man to be ashamed of in having his name con- nected with it? Mr. Smyth: He has not admitted any shame. Q. Do you consider for your name to appear in connection with a forecast as to the success of the United States in this war against the Im- perial Government, notoriety — that is, getting one's name in the papers; do you think that there is anything to be ashamed about it? Mr. Smyth: That is a matter of taste. Some people rush into print; some stay out. Q. Do you think that there is anything to be ashamed of? A. You may not be ashamed of it. I do not care for it. Q. You prefer not to have your name mixed up with it? A. Not mixed up; I do not like that expression at all. Q. Now, you said a few moments ago that you said to Dr. Tildsley that if some of this discus- sion which might come up in the class-room that you would not interfere; do you remember that; that is to say that you would not throw your weight in favor of one side or the other? Mr. Smyth: He did not say^ that; he said thai he would get all the facts. Mr. Mclntyre: I know, but he said he would not interfere by suggesting his opinion; was not that it, Mr. Mufson? Never mind that paper novv. A. Will you tell me in what part of the chai-ges that appears? I am sorry — Q. I am asking questions. I want to find out now just wliat your outlook on this question is? A. I have made up my mind not to answer any questions that do not relate to the charges. Mr. Mclntyre: You have not the decision of 181 that question. Will you instruct the witness to answer? The Witness: I decline to answer. Mr. Mclntyre: What? The Witness: I decline to answer. Chairman Whalen: What is that? The Witness: I decline to answer. Chairman Whalen : Unless you can get him to do it, Mr. Smyth? \ Mr. Smyth: Let me see. Mr. Mclntyre: Now, Mr. — Mr. Smyth': Do you not want to be fair, Mr. Mclntyre? Mr. Mclntyre: Yes. Mr. Smyth: You have already stated the con- versation on this occasion. It is perfectly proper that they should ask you about that conversation. They are not asking about anything outside of that conversation in that question, so therefore the question is a simple one to answer what you said; that is the question, and that you have already stated on direct. The Witness: Will you frame your question again ? By Mr. Mclntyre: Q. You said on your direct examination by Mr. Smyth that in certain discussions that might come up in the classroom you would not interfere? A. No, not in those words. I said I would not hii- pose my opinion. Q. Yes. Now, in what kind of a question would you take that attitude of not imposing your views? A. For example, I am charged here with — Q. Take the question of anarchism; suppose that came up for debate? A. I would not permit that question. 182 Q. Suppose that question did come up? A. I would not permit it. Q. Supposing you were instructed by some one higher in authority to have the question in dis- cussion? A. For example, by whom? Mr. Mclntyre: Will you direct this witness to answer? Mr. Smyth: Is this fair, Mr. Mclntyre? Mr. Mclntyre: I think it is. Q. Suppose the Superintendent of Schools did instruct you to have your boys debate the relative merits of anarchism or democracy?' A. I would like to have the Superintendent of Schools here and ask him if he would instruct me to have that question debated. Q. In other words, you will not answer the question? A. I have answered the question. Q. You won't tell this Committee where you stand with regard to that question, will you? A. I have told the Committee. Q. Well, suppose the question came up in de- bate? A. I would not permit it to come up. Q. Suppose the Superintendent of Schools told you that you must allow it to come up for debate? Mr. Smyth: How can that be the basis of charges ? The Witness. This is childish. Mr. Mclntyre: Will the Chairman instruct the witness to answer? Chairman Whalen: We will get along very nicely if you will just answer the questions. If you think you cannot answer them, say so. Mr. Mclntyre: He is fencing. Mr. Smyth: He is not fencing. Chairman Whalen: He can either say yes or no. By Mr. Mclntyre: Q. Suppose the Board of Education passed a 183 resolution directing that that question be de- bated in your class in the De Witt Clinton High School; would you allow it to be debated? A. My dear, sir — Q. Would you or, would you not? Mr. Smyth: He was going to answer; give him a chance. A. (continuing) : That question makes me think of another question. Suppose the moon were made of green cheese: Would I permit the cow to jump over it? Mr. Mayer: I move to strike the answer out. Mr. Mclntyre: Let it stand. It is a magnifi- cent answer. By Mr. Mclntyre: Q. Suppose the Board of Education passed a resolution directing you to allow the question of anarchism to b^ discussed; would you allo\Y it to be discussed? A. I decline to answer. Q. Did you not say on your direct examina- tion that you are not bound to teach boys re- spect for the Pf-esident of the United States? A. I did not. Q. Perhaps I misunderstood you. What did you say with reference to that? A. I said noth- ing at all; that question was not brought up to me at the interview. Q. Do you believe that you do labor under an obligation to inculcate respect for the Presi- dent of the United States in the minds of your pupils? A. I decline tO' answer the question. Q. Are you in sympathy Mv^ith the United States m this war against the German Government?. A. I decline to answer the question. Mr. Smyth : On what ground ? You are getting yourself in a position you do not appreciate. Mr. Mclntyre : One moment — Mr. Smyth : Wait a moment. I think the wit- 184 ness is so entirely strange to the witness chaiir that he does not appreciate where he is placing himself. The Witness: I appreciate fully just what I am saying. I am not irresponsible. I know what I am saying. Mr. Smyth: . The question is do you feel it your duty to inculcate respect for the President of the United States? The Witness: I decline to answer that ques- tion. Mr. Smyth: Because it is not in the charges? The Witness: Because it is not in the charges. Mr. Smyth: All right, let us see; let us waive that for the moment, because after all they are entitled to know that. The Witness: I do not think so. Mr. Smyth : Yes, oh, yes, I think you had better answer that. It is a very simple question. The Witness: I decline to answer. Mr. Smyth: Well- By Mr. Mclntyre: Q. Do you believe it is your duty to urge the pupils in your class to give active support to the United States in this war against the German Government? A. Will you show that I have not done so in the classroom? Q. Will you answer my question or not? A. No, I will not. Q. That is sufficient? Do you remember when the loyalty pledge, which was circulated among the schools on behalf of the Board of Education, was presented to you? A.May I ask you what that has to do with these charges? Chairman Whalen : I think you might answer. Mr. Somers: I think, inasmuch as the gentle- man declines to answer the questions further, that you should not press the questions. 185 Mr. Mclntyre: In other words, you do not want me to press the questions? Mr. Somers: I do not think so; I think it is wasting time. Chairman Whalen: Any more witnesses? Have you" any further witnesses? Mr. Smyth: No. I renew the motions to dis- miss the charges upon all the evidence, and upon all the grounds urged heretofore. 'Will it be considered that the by-laws. Section 39, Subdivision 18, and Section 41, Subdivision 18, are in evidence? Mr. Mclntyre: I object to the reception of those by-laws in evidence because they are offered for the purpose of showing that the grounds upon which teachers may be tried are general in- efficiency, neglect of duty and insubordination and gross misconduct. Chairman "Whalen: We will take it under advisement. Mr. Smyth: You made them a part of the other case? Chairman Whalen: Yes. Mr. Smyth: They were received. Chairman Whalen: No. We will take them under advisement. Mr. Smyth: Then we had better mark them for identification. Mr. Mclntyre: When the Committee decides to receive them you can instruct the stenographer to copy them into the record. If they are not received he can mark them for identification. Chairman Whalen: We will receive them for identification. Mr. Smyth: All right. Your Honor denies me that motion? Chairman Whalen: Yes. ' Mr. Smyth: Exception. Your Honor denies the motion to dismiss? 186 Chairman Whalen: Yes. Mr. Smyth: Exception. Chairman Whalen: Now, do you want to dis- cuss before the Committee the evidence, or do you want to sum up for us? Mr. Smyth: 1 Would not attempt to sum up a I this late hour, with the continuous session we have had ever since three o'clock this afternoon. I do not think 1 could do the Committee any good, or myself, or any one else any good. It seems to me we ought to do it some other time or else waive summing up. Mr. Mayer: I am perfectly willing to waive it. Mr. Mclntyre: I will waive it. Chairman Whalen : Then you will submit it as it is to us? Mr. Smyth: Submit it as it is. I rely on my motion to dismiss, which I now renew on all the evidence. It comes within none of the sub- divisions or classifications of the by-laws which I have referred to, and that the matters testified to or the matters contained in the charges are not the subjects of charges for the purpose of dismissal or discipline of the teachers, and further that the charges as specified have not been borne out by the evidence. I suppose the by-laws are in evidence? Chairman Whalen : The reason I referred to it now, was that in the beginning of the trial I said that at the close of the trial if you chose to give us your view on the law of the case we would be glad to hear you. It is only for that reason that I call it to your attention. I know you must be tired after such a long trial. The by-laws have been submitted to the Committee for identification, and if we admit them we will let you know, and if we overrule your ofier we will give you an exception. 187 Mr. Winthrop: Is it your idea that the new Educational Law takes the place of the by-laws or the by-laws are still in force? Mr. Smyth : As 1 understand it the new Educa- tional Law takes effect to the extent of provid- ing for the by-laws to be amended, and until the by-laws are amended those by-laws are still in force. Mr. Winthrop: Your point is that these by- * laws are still' in force in spite of the new Educa- tional Law? Mr. Smyth: That is true. Mr. Winthrop: That is your point? Mr. Smyth: Yes. Mr. Somers: In regard to that, the law is very explicit. I cannot put my hand on the section, but it provides that a teacher may be removed after a hearing for cause. Mr. Winthrop: The point that Mr. Smyth makes is that the by-laws specify the grounds upon which you can remove a teacher. Mr. Mclntyre: We must have a by-law which is not inconsistent with the statute. Further- more, let us assume that the by-laws is in 'effect, and all these things come under the head of gross misconduct, refusing to serve the United States in this great crisis, the greatest crisis in the his- tory of the world. Mr. Smyth : May I say one word in that respect : There is not any evidence from the prosecution of any act on the part of any of these teachers; there has been nothing but an attempt to get up a hypothetical case and ask their opinion on a hypothesis. There has been no evidence of any . kind that in the discharge of their duties any one of these teachers were other than loyal, holi- est, faithful servants to this community. It is something comparable to the old Salem witch- 188 craft trials, that a person who is supposed to have views that were not in cognizance with the views of the community, are put on trial and asked suppositious questions, not as to what they have done, not as to what their duty requires them to do, but taking a case that is not in point at all, what would you then do; in other words, you could not get a better example of trying to set a trap and catch these persons, get these per- sons into making admissions outside of anything they have done, than we have had here exhibited before us in the testimony of Dr. Tildsley and Mr. Paul, and the other gentlemen who have testi- fied. So far as the character of these men is concerned, everybody seems to unite that they bear unblemished reputations as teachers and as gentlemen. They have done nothing. We may disagree with some of their views, so far as state- ments of philosophy are concerned, but there is nothing to show that they are unfit from this evidence, and certainly • what they have said is absolutely incognizant with our ideas of loyalty and patriotism. If these persons had gone on the stand and admitted that their idea was that patriotism should not be taught in the schools, that they were against you, if they were told to, that would be one thing. But you have had them before you. You have beard them cross ex- amined at great length, and they have told you that so far as their conduct towards their scholars was concerned, if the subjects were to come up they would be loyal. Merely because, in an in- quisition carried on by Dr. Tildsley, under cir- cumstances which it seems to me certainly smack of prejudice, and are founded on something else other than specific disloyalty, they have managed to extract here and there, phrases and state- ments, apparently through faulty recollection, evidence of which Dr. Tildsley gave us on the 189 stand, of distorted meaning, it is hardly a fair thing to say that tliese gentleinen are to be de- prived of their hberty and are to go forth stigma- tized in this world at this critical time as dis- loyal subjects, the worst punishment that can be meted out. If these men were on trial before a jury in an ordinary court of record, there is not any judge, and I know Mr. Whalen will agree with me, who would permit that kind of testi- mony to be receiwd to blacken the reputations of these men. If, for instance, Mr. Schmalhausen, in class, had received this paper written by Hyman Herman and had said, "Well, boys, you have heard this state- ment, I do not disagree with it," and that utter- ance of his had gone forward to the others, then you would have something to fasten on; then you would have just grounds for saying that "that man is unfit to be a teacher because he has given us evidence of it," but nothing of that kind occurred. We find that he did not even know about the statement that Herman had made until some two weeks afterwards, when he was shown the statement, not in the school-room, not in the presence of boys who were to be taught, but in the inquisitorial chamber. Questioned, and made to say things, according to the interpretation of Dr. Tildsley, which are at variance with the state- ment that he has annotated on the paper itself. The whole thing is hypothetical. There is not anything real in any of these charges. To say a teacher is to be dismissed on a hypothesis of that kind, it seems to me, is to give countenance to something un-American, unpatriotic and opposed to all our institutions and our ideas of what a trial should be, which only seeks to deal out fairness and not deal out trickery, and to entrap a man. Mr. Mclntyre: May jt please the Committee 190 with regard to that: Some of these cases do present issues of fact. Now, the only way that you can decide these issues of fact in favor of these teachers is by assuming that Dr. Tildsley, Mr. tA.nthony and Mr. Paul have entered into the dirtiest kind of a conspiracy against these people without any reason, without any motive that I can conceive. I cannot conceive how you can come to any conclusion other than the fact that Mr. Tildsley and Mr. Anthonmand Mr. Paul are telling the truth. You have heard them and you have heard the witnesses, and we our going to let. you decide the issues of fact. But remember this: You cannot decide against Dr. Tildsley and the others without coming to the conclusioh that they hatched a conspiracy against these men. I cannot conceive why they should have done that. Therefore, I feel that you must decide the issues of fact against these defendants. Now, having decided the issues of fact against them, it will become apparent that, although they were presented in many instances with hy- pothetical questions, hypbthetical situations, it was only through these hypothetical questions that their attitude toward the United States in the present conflict with the German Government could be ascertained. It could not be done any other way. As far as I am aware, the course of study did not permit it. There was not anything tangible that afforded the educational officers the means or the opportunity of finding out just where these people stood. The only way it could be found out was by presenting these hypothetical situations and ascertaining from their attitude from the way they would act in these giVen situa- tions, whether or not they were friendly or un- friendly to the United States Government in this, the greatest of all crises. Now, having ascertained from these answers •191 that they were hostile to the Government, it was a plain violation of the duty which they owed to the State, because, in point of fact, they do re- ceive their livelihood from the State, and in these insidious ways seeking to undermine the Consti- tution of the State, and the Constitution of the State requires every public official to take an oath that he will support the State Constitution and the Federal Constitution, therefore, if these three gentlemen made these statements which showed they were not in sympathy with the United States Government in this war against Germany, that they were, we might say, disloydl, I think some of the testimony goes that far, they plainly disqualified themselves longer to continue as public school teachers because a public school teacher owes an affirmative and positive duty to work for the State; not an attitude of even pas- sivity, but labors under the obligation of taking affirmative steps to protect the interests of the State and Federal Government. Vou cannot get away from that. The legal proposition is as plain as can be. Chairman Whalen: We want to thank you gentlemen very much, indeed, for the very courteous way in which, you have tried these cases. I feel very grateful to the corporation counsel also, and your viewpoints which you have just given us are going to help our Committee in the determination of this case. We understand now that the cases have been submited to us, we will take them under ad- visement and render a decision as soon as pos- sible. Hearing in the Above Case Closed. 192 DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK. In the Matter of The Charges of Conduct Unbe- coming a Teacher, Preferred by- Associate Superintendent TiLDSLEY, against A. Henry Schneer, teacher in the DeWitt Clinton High School. New York City, December 3, 1917. Met pursuant to adjournment at 3 o'clock P. M., this case being taken up at 10 o'clock P. M. BEFORE THE COMMITTEE ON HIGH SCHOOLS AND TRAINING SCHOOLS. Present — Mr. Whalen, Chairman. Mr. Atkinson, Mr. GiDDINGS, Mr. Greene, Miss Leventritt, Mr. Somers, Mr. Winthrop. Appearances : Charles McIntyre, Esq., and Wm. E. C. Mayer, Esq., Assistant Corporation Counsel, for the Board of Education. Herbert C. Smyth, Esq., and R. Wellman, Esq., appearing for A. Henry Schneer. President W. G. Willcox and Secretary A. E. Palmer, of the Board of Education. 193 Chairman Whalen: The Committee is now ready to hear the case of the teacher. Professor Schneer. Mr. Smyth: At the outset, if it please the Committee I deem it my duty to present a mat- ter which is exceedingly disagreeable to me, in the first place, because of the nature of the pro- test that I am about to make, and, in the second place, because I have a very long acquaintance with the Chairman, about whom, under all other circum- stances in the last twenty-five years that I haVe had the pleasure of his acquaintance, I could not think of raising such a question, but the public print and the evidence which is at our disposal leaves no other course open to me. I think I should very much like to leave the matter to the discretion of Mr. Whalen himself, but in view of the public statements made by the Chairman, and particularly in an edition of the Evening Telegram of November 25th last, and in other publications, published throughout the City, it has been borne in upon me as representing these three teachersr that Mr. Whalen has rendered himself unfit to preside as a member of this Committee, because apparently he comes in as a judge with a prejudice against them, which to my mind makes it impossible to insure, so far as the Chairman is concerned, these gentlemen will have a fair and unprejudiced hearing. There is much evidence at my command, and which I assimie will come out during the course of the hearing, that the genesis of these charges was in a resolution which was passed by the Teachers' Council, which condemned or criticised the Chairman's action in utterances which he had made with reference to the prolongation of hours of work of the teachers and school hours of the pupils, a subject which is utterly foreign to the charges as will be easily seen by reading 194 the charges themselves. It appears that in getting at who should be made , defendants or respond- ents in this proceeding that in the course of the investigation the principal inquiry made of the witnesses, including the accused teachers, was not with reference to the particular charges, but the first and important question asked was "Did you vote or have any part in giving light to the so-called Whalen resolution?" the resolu- tion which I have referred to which criticised the Honorable Chairman. Now, under these circumstances I respectfully lodge a protest, and I say respectfully, because 1 have the greatest amount of respect for Mr. Whalen as a lawyer, as an officer, and as a citizen, but at the same time were I in his place I would deem myself equally unfit to act in the dual role of accuser and judge. It is a posi- tion which is absolutely opposed to all our demo- cratic institutions. It was one that was guarded against at the time that this Republic was born, in fact, and it seems to me, that as I feel it must be the desire of all the members of the Com- mittee, including the Chairman himself, that they shall have judges who are just as impartial, sit- ting here with regard to the gentlemen, as would be the case if they were to be tried in a court of record down in the court house where Mr. A^halen has often graced the bar at that tri- bunal, and under these circumstances I now make a formal protest against Mr. Whalen acting as Chairman. Mr. Mayer: If the Committee please, the pro- test which my learned adversary has so suavely lodged docs not seem to me to be at all in point. He speaks of your Chairman as the accuser. Of course, the Committee knows that neither th,e Chairman nor any other member of this Com- mittee preferred these charges. They come from 195 an .entirely different source. He is the judge, it is true. We have understood for some time that some such claim as is now made was going to be ma(^e against the honorable Chairman of this Committee. We do not believe that it is pertin,ent. We do not believe that the law as it is generally understood will view with dis- pleasure the sitting of Mr. Whalen as a member of this Committee. Here he is acting as a pub- lic official. He is sworn to do his duty. The law demands that h,e will do his duty to the fullest extent, and with justice and without malice toward the accused. It lies wholly within Mr. Whalen's conscience whether or not he sits in this Committee. He cannot be ousted from this Committee by a protest of this kind, which is far afield from the matters which will come up for judgment here. I therefore urge that Mr. Whalen, in accordance with dictates of his own conscience, remain and sit as a member of and Chairman of this Committee. Chairman Whalen: I appreciate very much Mr. Smyth's position and recognize that it was his duty, of course, to make the objection; I know there is nothing personal about it at all. Mr. Smyth: Not at all. Chairman Whalen: Not at all. I submitted the matter to my Committee and they cannot see any reason in the wprld why I should not sit. I never expressed an opinion in the cases now be- fore us and I am not awar,e that I have ever mentioned the names of the defendants. I gave a correct description of the kind of teacher that I tiiough ought not to be in the school, and, of course, if you admitted that that description fitted your clients, then I would have to admit that I have expressed an opinion which might be taken as being opposed to them. If they do not fit the description, then, of course, no harm 196 has been done to your clients, because their names were never mentioned. However, your objection is overruled and you may have an exception. | Mr. Smyth: That our position may be cor- rectly understood, Mr. Chairman, the views ex- pressed by you in the abstract have my hearty concurrence. It is because of information that' has come to us that you have attempted to ap- ply those views to the three teachers, or we fear that this testimony points in that direction, that I filed a protest. If the description were to fit my clients I would not be here defending them. Chairman Whalen: Therefore it is quite clear that whatever I may haye said does not apply to your clients, in view of the statements you have just made. Now, number 2 and number 3 of your affirma- tive defense are ov.erruled, and you may have an exception to those, so that narrows the issue right down to the specific charges that have been made by the City Superintendent against your clients. I sincerely hope, and the Committee hope, that you gentlemen, Mr. Smyth and the other coun- sel, will try this case without any feeling at all, try it in an orderly and dignified way as you always try your cases in court, and where you can stipulate in regard to testimony so as to shorten it, we will be glad if you will do so. Mr. Smyth: I will do everything I can. Chairman AiYhalen: At the close of this and the other trials, if you feel you would like to argue the legal application as to the question of fact brought out in the trial we will be very glad to hear you. Mr. Mclntyre: We will now tak,e up the Schneer case. Chairman Whalen: Yes. 197 Mr. Mclntyre: These are the by-laws of the Board of Education showing the jurisdiction of this Committee. I offer them in evidence. Chairman Whalen: I ask you if your clients have any objection to the reporters being pres- ent in the room? They have asked permission to be here. Mr. Smyth: We have not. We leave that to your Honor entirely. Chairman Whalen: May I ask, Mr. Smyth, if you will agree that the pupils from the school who have been detained here may be excused from the room during the trial? Mr. Smyth : If your Honor thinks that > is the better course. Chairman Whalen: All the pupils subpoenaed here will please leave the room, and the officer will take care of them in the meanwhile until they are called as witnesses. (The pupils left the room.) In order to shorten this trial we think maybe you can agree with the Corporation Counsel that the qu^tion here to determine is, not what took place before or after, but just what took place on this day, that it will help. Mr. Smyth, is there a date specified? I do not know what the date is. Mr. Mayer: We will bring the date out in the testimony. Mr. Mclntyre: I offer in evidence certified copy of Section 13, Subdivision 7, of the By-Laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 1 of this date. Mr. Mclntyre: I off.er in evidence certified copy of Section 21, Subdivisions 4 and 5, of the By-Laws of the Board of Education. The paper was received in evidence and marked Exhibit No. 2 of this date. 198 Mr. Smyth: As I understood the Chairman to say, he asked me to stipulate what we were to try is whether the charges that are made hap- pened on the day intended or mentioned. Chairman Whalen: No, I mean these inter- views were said to haye taken place. Mr. Smyth: May that be specified? Chairman Whalen: He says he is going to do it. Mr. McIntjTe: I offer in evidence the charges and specifications in the case of A. Henry Schneer, served personally on Mr. Schneer on the 19th day of November, 1917. Mr. Smyth: Your point is that you wish us to admit service ? Mr. Mclntyre: There is no question about due and timely service. Mr. Smyth: Not at all. The paper was received in evidence and marked Exhibit No. 3 of this date. Mr. Mclntyre: On behalf of the defendant, do you wish the answer in the record? Mr. Smyth: Yes. The paper was received in evidence and marked Exhibit No. 4 of this date. Mr. Smyth: I understand that numbers 2 and 3 of our affirmative defense are overruled. Chairman Whalen: Yes. You may have an exception. Mr. Smyth: I take an exception. JOHN J. TILDSLEY, called as a witness, be- ing duly sworn, testified as follows: Direct examination by Mr. Mclntyre: Q. Dr. Tildsley, you are Associate Superin- tendent of Schools? A. I am. Q. Do you know the defendant in this case, Mr. A. Henry Schneer? A. I do. 199 Q. He is a teacher in the D,e Witt Clinton High School? A. He is. Q. He is a teacher of what sUbject? A. Mathe- matics. Q. Have you ever had a conversation with Mr. Schneer? A. I have had many; a number of conyersations. Q. Have you ever had a conversation regard- ing the specifications in this case? A. I have. Q. When was that conversation held? A. The conversation on which the specifications are based was held, I believe, on the 7th of Novem- ber, the day after Election Dayi Q. When, or rather where, was it held? A. It was held in the principal's office at the De Witt Clinton High School. Q. Who was present? A. Mr. Anthony, Dr. Paul, Mr. Schneer and myself. Q. Did the conversation transpire between you and Mr. Schneer, or did all parties participate in it? A. Mr. Schneer and I did most of the talking; Mr. Paul did some and Mr. Anthony, I think, also did some. Q. Will you tell us the substance of that con- v.ersation with reference to the teaching of patriotism in the schools? A. We had an inter- view a few days before on the question of methods of teaching in the school, and Mr. Schneer had given us his views in regard to the prevailing methods, to the teaching of science and mathematics, and it was stated that physics, chemistry and mathematics were but' forms of symbolic logic, and he talked at great length along that line, and we listened to him, and that closed the interview for that day, and the next time I saw him I told him I was very much in- terested in his views of science and upon the question of whether h,e believed in evolution, and he said he did, and therefore I brought up 200 the question of whether the institutions of the present time were not a result of evolution from previous conditions, and he said decidedly that they were, and 1 said, "Since you believe so firmly in the evolutionary doctrines, do not you think that has important lessons for us in the teach- ing of patriotism and the preparation of boys in the high school for citizenship?" That brought out the question whether patri- otism could be inculcated in the school, and in the course of this discussion he made the statement, which I dictated immediately at the close of the discussion to a stenographer, that he did not believe in the discussion of patriotism in schools. Now, we discussed that quite at length and in the course of this discussion about patriotism the question came up of various means of devel- oping a patriotic atttitude on the part of the pupils, and as part of that discussion came up the question of whether any respect was due to the uniform or to a person wearing the uniform. Q. What kind of a uniform? A. The khaki uniform of the United States troops. He then made the statement that he would not allow a person in a khaki uniform to appear on the platform of the De Witt Clinton High School and speak to the students, on the ground that it would encourage militarism and encourage a one-sided presentation of the attitude towards the war. I then raised the question of whether he would allow Arthur Haase to speak from the platform. Q. Who is Arthur Haase? A. Arthur Haase was a teacher of mathematics for many years in the De Witt Clinton High School, was the leader of the Junior organization of the boys, and exceedingly popular among the boys, and he went to Plattsburg and received a commission as 201 a lieutenant in the Quartermaster's Division. I asked him whether he would allow Arthur Haase to speak. I said, "You realize that in war time he would have to wear his uniform." He said, "I would not allow him to speak unless he would take off his uniform; he would have to come in civilian's clothes." Then he further said he would not allow him to speak unless Walter Lippman should be asked at the same time to speak on the platform and speak on the non-military duties that a citizen could discharge for the government. We proceeded from that to the general question of fur- ther preparation of the boys for military serv- ice, and I put this question to him: "Some peo- ple believe that the war may last for five years longer; if it does last for five years longer the boys now of the High School will be available for military service. Now," I said, "it is a mooted question whether military drill in the schools for boys tends to result in a good army, and assuming that the best expert authorities agree that if we had military training in the high schools for the next five years, at the end of that time we should have a better military force for the service of the government than we could have without this, would you favor military training?" And he said, "I do not believe the Board of Education has any right to have military training in the schools." The question came up of other services that might be rendered by the schools, such as co- operating in the sale of Liberty Bonds, and he said that the President of the United States did not dare to ask the teachers in this city to sell Liberty Bonds. I drew the general infer- ence — Mr. Smyth: I object to the statement of "gen- eral inference." 202 Chairman Whalen: Yes, leave out the infer- ence. By Mr. Mclntyre: Q. Is that the substance? Mr. Mayer: Did you tell him that you drew that general inference? The Witness: No, I did not tell him I drew the general inference; the impression left upon my mind, this is a fair statement, I believe — Mr. Smyth: I object to the impression. He can only state what he remembers he said. The Witness: This is what I remember. Chairman Whalen: Leave out the word "im- pression." By Mr. Mclntyre: Q. State what the substance of any further conversation was? Mr. Smyth: What did he say and what did you say? The Witness: What I said? Mr. Smyth: Yes. The Witness: I did not tell you what he said and I can answer any question you see fit to ask as to what I said. Bjy Mr. Mclntyre: Q. Now, Dr. Tildsley, did you have any con- versation with regard to this bibliograhpy which I now show you? A. So far as I remember, I did not have any conversation in that interview about that bibhography. Q. Did you at any time? A. Not that I remem- ber; I made no memorandum about it. Mr. Mclntyre: Is it conceded, Mr. Smyth, that Mr. Schneer is the author of this bibliography? Mr. Smyth: Yes, he wrote that. Mr. Mclntyre: It is conceded that Mr. Schneer 203 placed this on sale in the school to be sol