Beginning September 23, 1930, the film shot largely in sequence on six- and sometimes seven-day weeks through November 8. With rewrites continuing apace, Hawks worked for the first time with cinematographer James Wong Howe
for the first three weeks, mostly on the early scenes in the warden’s and the D.A.’s offices, the police station, and Spelvin’s Café, a big scene shot on the Universal lot. When Howe left to shoot another picture, Ted Tetzlaff came in for the remaining four weeks to photograph all the prison scenes, including the five days spent on the spectacular prison-yard set, where Huston wades in amongst
the convicts.
These scenes, which involved as many as eight hundred extras, were shot on the huge set on the MGM lot used just a few months before for the first major studio prison picture, George Hill’s
The Big House
, cowritten by Flavin, which had been released in June and to which
The Criminal Code
has always been compared. An exciting film until its cop-out ending,
The Big House
is impressive
for its size and near-architectural qualities, but scenes from
The Criminal Code
stick in the mind more indelibly: Huston’s repeated displays of arrogant confidence as he faces the prisoners in the yard, yells back at them in their own crude manner, and defiantly lights his cigar and stares down their hate for him; Karloff’s implacable stalk as he corners the sadistic guard for the kill while
the other prisoners cover the act with their shouting, and the surprising humor Hawks draws from grim surroundings and characters. Hawks also dabbles in overlapping dialogue for the first time, in the opening scene in the police station, where one cop is on the phone while two other men are playing cards.
The Criminal Code
doesn’t seem as timeless or congenial as many of Hawks’s later films, and
it is damaged by an uncharacteristic sappiness in the scenes with the romantic youngsters. Even here, however, Hawks softened the blow with his determinedly unsentimental treatment of a potentially predictable moment: when a cable arrives with the news that Phillips Holmes’s mother has died, he is playing checkers in his cell; the cable is passed around among the cons in silence, but before the
expected reaction can set in, Holmes’s cellmate says, “Your move, kid,” nipping any overt emotionalism in the bud.
The Criminal Code
opened in New York on January 3, 1931, less than two months after it wrapped, and did very good business, especially for a Columbia release. The film did encounter some problems because of its violent and potentially volatile content, particularly in Chicago, where
its bookings were canceled after the local censor board demanded heavy cuts.
By the time Hawks finished up retakes and final work on
The Criminal Code
in mid-November, Howard Hughes’s relationship with Hawks had warmed considerably. Hughes’s next production was to be a gangster epic, and Hawks’s expression of interest in directing it had developed into a firm intention. Aside from liking the
idea of making the ultimate gangster film, Hawks enjoyed the fact that everything the young Texan did represented a snub at the powers that be of the Hollywood establishment. To Hawks, aligning with the wealthy Hughes meant the possibility of real independence from the ruling nabobs. The only problem was his freshly minted contract to direct three pictures for First National, which had been patiently
waiting since August for him to finish
The Criminal Code
. Determined not to miss his chance with Hughes, Hawks had to figure out a way to slither out of First National’s grasp in order to make the most explosive picture of gangland the world had ever seen.
On November 28, 1930, when Hawks reported for work at First National, Hal Wallis immediately teamed him up with the writer Waldemar Young to prepare an adaptation of A. Hamilton Gibbs’s popular novel
Chances
. Hawks’s assignment to this project was a typical example of studio thinking: since the director had handled
The Dawn Patrol
so effectively,
let’s give him another tragic World War I story, albeit one dominated by a triangular love story. Almost immediately, Hawks objected, deriding the material at story meetings and telling Wallis and Jack Warner in no uncertain terms that the book was lousy and could only make for an equally poor picture. Soon realizing that Hawks’s attitude made further insistence futile, the studio proposed several
other projects to the director, all of which he rejected out of hand. Finally, on December 11, figuring he’d show his obstinate employee who’s boss, Wallis yanked Hawks off
Chances
but also put a hold on any salary payments until such time as Hawks came around. Five days later, Hawks strolled over to the cashier’s office to collect the three thousand dollars he was contractually owed for his work
since November 28 but was told there was no check for him. The next day he returned and was again rebuffed. He thereupon informed First National that he considered the studio in breach of contract and that he was therefore free to sign another deal, which he did with Howard Hughes on January 16.
Understandably, First National saw things a little differently. No other director treated them so
rudely—not Bill Wellman, not Mike Curtiz, not Mervyn LeRoy—and a contract worker was a contract worker, expected to do what he was told. Still, Jack Warner liked Hawks, so he deigned to sit down with the upstart Howard Hughes three times in February, the final time at the Lakeside Country Club, to try to resolve “the Howard Hawks problem.” No solution could be found, however, so, on March 6, 1931,
First National filed suit against Hawks and Hughes’s The Caddo Company for breach of contract. The studio asked, among other things, that Caddo be
restrained from employing Hawks, who was then in the thick of preparing
Scarface
, until the matter could be settled.
Although Hawks might not have expected the case to go as far as it did into a lawsuit and a public airing of his terms of employment,
he certainly didn’t mind, since it asserted his will and, in his view, his right to operate independently of the studio harness. Upon a closer examination of the case, there can be little doubt that Hawks orchestrated it to unfold almost precisely as it did, completely in his favor and on his terms. That he lied and behaved disdainfully toward his employer was of no consequence to him, since it
enabled him to direct the film he wanted to make at that moment. More than that, the case established, for the first time, Hawks’s position that he needed the studio chiefs less than they needed him. If they wanted to deal with him, it would be on his terms, not theirs. He had money, he had talent, he could say no and walk away. Very few other directors in the nascent studio system dared behave this
way, or were in a position to. It took nerve, but Hawks got away with it, and he set the terms under which he was able to pursue the extraordinary career he did, one that was virtually unique in Hollywood at the time.
It seemed like the sort of squabble that could have easily been settled by a gentlemen’s agreement: sure, we’ll let Hawks direct
Scarface
, but then he’s got to come back right away
and make the three pictures for us that he’s contracted to do, and no more loan-outs and no money from us until he makes them. But there were two factors mitigating against this. First, the Hollywood moguls, as competitive as they were with one another, were united in one thing: they hated Howard Hughes. This maverick with money of his own who could spend three years monkeying with a movie, a
good-looking, high-flying thirty-one-year-old bachelor with no respect for the way things were done in Hollywood, rubbed the big bosses the wrong way on every count. What’s more, at this moment before the rise of Darryl F. Zanuck, when literally all the studio heads—Mayer, Zukor, Schulberg, Cohn, Warner, Goldwyn, Laemmle, Fox, Schenck—were Jewish, Hughes was clearly not destined for membership in
The Club; it was noticed that Hughes hired virtually no Jews and that one of his pet projects was an adaptation of the scathing Hollywood satire
Queer People
, whose virulent attacks on the industry’s power brokers were widely perceived to be anti-Semitic. Therefore, the establishment bigwigs would happily go out of their way to do anything they could to deal Hughes a setback.
Second, the studio
executives, having effectively wrested control of the business over the past five or six years and now in the process of consolidating
their power, needed to assert their absolute authority over “talent.” The whole studio system was being structured and continually refined to keep actors, directors, writers, and all other personnel in their place; Hollywood unions were still pie in the sky and
would be created over the dead bodies of the bosses. It was their money, they called the shots, and if some actor or director didn’t like what they were told to do, he could just sit out on suspension until he came to his senses. It was therefore only logical to sue Hawks to bring him into line and to prevent him and Hughes from showing the world that two rebels, answerable to no one else, could
make a film as well as—or even better than—they could.
In essence, both sides in the suit alleged breach of contract, First National accusing Hawks of not fulfilling the terms of his contract, to direct three films during the 1931 calendar year, and Hawks claiming that the contract had not been effect since December 17, when the studio had refused to pay him, thereby freeing him to seek employment
elsewhere.
In his account of the events leading up to the break, Hal Wallis stated that Hawks was recalcitrant about the
Chances
project from the outset. “I discussed Hawks’s objections with him, but Hawks made no criticisms of the story other than a general statement that it was poor or weak. He offered no suggestions as to how to change or improve the story. I told Hawks to attempt to work
the matter out with [Waldemar] Young. Several conferences were held in which Hawks, Young, Charles Graham Baker, one of First National’s production executives, and I participated, for the purpose of discussing the adaptation.… Hawks persisted, in all of these conferences, in his attitude that he would not make any photoplay based on this novel. He disagreed with and dissented from every suggestion
made for improving the story, but made or offered no suggestion of his own.…
“Finally, Hawks refused absolutely to make
Chances
and also refused to make any of several other stories which were suggested to him. Hawks was then instructed, about December 11, 1930, that he would be paid no further compensation until he complied with his contract by beginning work upon a story assigned to him.”
To build the case for Hawks’s uniqueness and consequent value to the studio, Wallis was forced to add an evaluation that can only have made him choke on his words: “In my opinion, Hawks is a motion picture director of unusual and extraordinary ability.… He commands and has commanded, by reason of his reputation and ability, a compensation which is large as compared with the salaries of ordinary motion
picture directors.”
Waldemar Young, who had no particular ax to grind with Hawks, added: “I had several meetings with Hawks lasting until about December 10, 1930. At no time did he confer or work with me for more than one or two hours per day. During these conferences Hawks’s suggestions were consistently destructive and not constructive to the adaptation of the novel.” Young also noted that,
after December 17, he continued on without Hawks and polished off the adaptation within two weeks’ time.
Most revealing, however, is Jack Warner’s commentary. Although Warner held no title at First National, Warner Bros. owned First National and they essentially functioned as the same company. Warner commenced by proclaiming that “Hawks’s reputation as a director is now such that he has ‘box
office value,’ that is, his name, advertised as the director of a picture, attracts persons to see such picture. I do not believe that it would be easy to replace Hawks’s services, nor do I believe that there are many, if any, directors whose services and ability duplicate or excel those of Hawks.” He thereupon set out his complaint that Hawks had spent very little time at the studio since initiating
his contract. Noting that Hawks had come to him in person and refused to make
Chances
, Warner added that, on December 10, Hawks “also stated that he could not and would not work with Harold B. Wallis.… I pointed out to Hawks that under his contract he did not have any right to select or approve the stories upon which he was to work, but that I was willing to attempt to please him if possible.
Therefore, I gave him several other stories—
As Good as New, The Noose
and
Ambush
—all successful and well-known novels or plays, as well as John Monk Saunders’s original story ‘The Finger Points.’ About December 11, 1930, Hawks returned to my office, threw the above-named books on my desk, and stated that he would not make any of them, that they were all poor. He then asked me to release him from
his contract entirely and to enter into an arrangement whereby he could make one picture a year for First National based on some of his own stories. This I refused to do. I again pointed out to him that under his contract he had no choice of stories, and no right to dictate the particular story upon which he was to work.”
Hawks nevertheless plunged ahead to propose to Warner two stories he claimed
he’d written. The first was “based to some extent upon the life of a well-known Los Angeles evangelist,” and Hawks offered to let Warner have it for ten thousand dollars. The second was an original submarine story that Hawks was willing to part with for twenty thousand dollars. Just as Hawks surely knew they would be, both were rejected, and Hawks left Warner’s
office knowing that his next move
would be a call to Howard Hughes telling him the coast was clear.
By the time the suit was filed in March, First National had collected a truly extraordinary set of affidavits from many of the top bosses in Hollywood. Assembled to help First National bolster its case, they also made for an array of quotes that any director would have been thrilled to put on his résumé. Samuel Goldwyn asserted,
“Hawks possesses the requisite essentials of a first-class director. His abilities are such that a producer securing his services, rendered in good faith, is assured of ability which few other directors possess. His services, in my opinion, are of a special, unique and extraordinary character.” Joseph M. Schenck and Louis B. Mayer also gave ringing endorsements.