P.S. “Not used in Bulletin. Put in file.” (1956)

American Labor Party flyer supporting the re-election of NYC Councilman Ben Davis, 1945

In an earlier post and two essays I have written about my search-and-discovery experience of “Finding Claudia Jones,” the extraordinary woman whose achievements in the face of deportation, illness, and poverty stand as an inspiration in today’s bad times. As I learned about Jones, I inevitably got acquainted with some of her friends and colleagues, including Benjamin J. Davis. Davis was a lawyer, a prominent Communist leader, and for two terms a New York City councilman. He was arrested and convicted under the Smith Act in 1949 and spent several years in a federal penitentiary. Davis and Jones kept up their friendship after he was imprisoned and she was deported; I tracked down some of their letters in the Davis file at the Schomburg Center at the New York Public Library.

In 2008-2009 I was a fellow at the Charles Warren Center for Studies in American History at Harvard, working on Jones. I knew Davis was an alumnus of the Harvard Law School, so I went over to check the Law School archive and was somewhat disappointed to find only one thin folder under his name. Inside the file, however, was one of those discoveries that make a historian’s work exciting – a remarkable letter Davis wrote to the Harvard Law Bulletin in 1956, one year after he was released from prison. The Bulletin had sent him a form letter asking for alumni news, and he responded with a full answer – apparently, fuller than they wanted.

“What kind of information do you want? What I shall give you is, at least, unique and represents an ancient liberal tradition of Harvard, which is somewhat unpopular today and which Sen. McCarthy tried desperately to extinguish by his unprincipled guttersnipery against Pres. Pusey and against Harvard in general…”

The editors of the 1956 Bulletin put the letter in a file – too Red to be published then, I suppose, but at least they kept it! I took it to the 2009 editors, who did publish it, 53 years after it was mailed.

I remember hoping then that two of Davis’s fellow HLS alums, Barack Obama (’91) and Michelle Obama (’88), had time to look at their Harvard Law Bulletin that first summer in the White House. It was a lot easier to be an optimist in 2009 than it is today, but our former president still seems to share Davis’s “abounding faith in the good sense of the American people.”

The article below is reprinted with permission from Harvard Law School.

A Price Paid for Conviction

By Emily Newburger, Harvard Law Today, July 1, 2009

A half century after it was written, a letter to the Bulletin is finally published

In the 1950s, the HLS Bulletin asked for alumni updates just as it does today. “Please send us news about yourself, your classmates and other alumni—anything interesting for the Harvard Law School Bulletin,” read the form from Harrison S. Dimmitt ’25, the Bulletin editor.

Among those who replied was Benjamin J. Davis ’28, a leading figure in the American Communist Party, who was also a civil rights attorney and a former New York city councilman. The first black Communist ever to be elected to office in the U.S., he worked to bring national attention to lynchings and Jim Crow laws. Davis joined the Communist Party shortly after law school, while he was defending a young black Communist labor organizer who had been sentenced to 20 years under a slave insurrection statute. At the height of the Cold War, Davis was a trenchant critic of the U.S. government.

When Davis replied to the Bulletin [in 1956], he had plenty of news: He had just been released from federal prison the year before, in April 1955, after being charged, tried and incarcerated under the notorious Smith Act, for alleged subversive activities. Not long afterward, he was charged again—this time under the McCarran Act, which carried a possible sentence of 30 years in prison—for his refusal to register as an agent of the Soviet Union. In 1962, with the charges still pending, Davis returned to HLS to speak on a panel with Dean Erwin Griswold LL.B. ’28 S.J.D. ’29. Davis died two years later, at the age of 60.

The letter to the Bulletin, excerpted here, was discovered by historian Clarissa Atkinson this spring in the Harvard Law School archives. At the top is a handwritten note: “Not used in Bulletin. Put in file.”

Dear Mr. Dimmitt:

What kind of information do you want?…

The most recent highlight of my life was my release last April (’55) from prison after serving a 5-year sentence for violating the thought-control Smith Act, and a 2-month sentence for contempt for refusing to reveal names of my co-workers, that is, for refusing to become an informer. These sentences I bore with pride—because they involved persecution for a devotion to the Bill of Rights, which I as a Negro have never fully enjoyed, and which I learned to appreciate more at Harvard Law. I am one of the first eleven Communist leaders convicted and sentenced by [Judge Harold] Medina back in ’49.

I am now under what is known as conditional restrictions which extend all the way from my personal movements to a ban against my practicing law. When those restrictions are finished I shall resume my activities in behalf of peace and democracy and in particular for the full liberation of Negro Americans from such as the barbarism in Miss. I hope that in the days to come the free and open market in ideas, inherent in the 1st amend., will return to our country, and that the American people will have the opportunity to hear and decide for themselves on such ideas as socialism vs. capitalism, and that dissent will not be equated with subversion.

By the way, it seemed to me the recent dissenting opinion of Judge William H. Hastie ’30 and of Messrs. Justices Black and Douglas on Smith Act cases, are far more in line with the best of Harvard Law than those of Mr. Justice Frankfurter [LL.B. ’06] or even of Justice Learned Hand [LL.B. 1896]—the latter two seemed to have been caught up in the hysteria and fears of the moment, without their having the foresight to see that these fears are purely transitory. I have abounding faith in the good sense of the American people, and that the sanity, identified with the best of Harvard, to which I’m indebted, will replace the witch-hunting insanities of the present day. There are already signs that this process is beginning.

I’m not in a position to contribute at this time to such publications as the Bulletin. (I haven’t been able to find an employer daring enough to hire me.) But I’d appreciate continuing to receive such publications, in the understanding that I’ll contribute when I’m gainfully employed.

Ben J. Davis
1 W. 126 St., NYC

© 2009 the President and Fellows of Harvard College. All rights reserved.