Administration—Lawlessness Exposed
In August, 1917, when it was clear that the policy of imprisoning
suffragists would be continued indefinitely, and under longer
sentences, the next three groups of pickets to be arrested asked for a
decision from the highest court, the District Court of Appeals. Unlike
other police courts in the country, there is no absolute right of
appeal-from the Police Court of the District of Columbia. Justice Robb,
of the District Court of Appeals, after granting two appeals, refused
to grant any more, upon the ground that he had discretionary power to
grant or withhold an appeal. When further right of appeal was denied
us, and when the Administration persisted in arresting us, we were
compelled either to stop picketing or go to prison.
The first appealed case was heard by the Court of Appeals on January 8,
1918, and the decision[1] handed down in favor of the defendants on
March 4, 1918. This decision was concurred in by all three judges, one
of whom was appointed by President Wilson, a second by President
Roosevelt and the third by President Taft.
[1] See Hunter vs. District of Columbia, 47 App. Cas. (D. C.) p. 406.
In effect the decision declared that every one of the 218 suffragists
arrested up to that time was illegally arrested, illegally convicted,
and illegally imprisoned. The whole policy of the Administration in
arresting women was by this decision held up to the world as lawless.
The women could, if they had chosen, have filed suits for damages for
false arrest and imprisonment at once.
The appeal cases of the other pickets were ordered dismissed and
stricken from the records. Dudley Field Malone was chief counsel in the
appeal.
Another example of ethical, if not legal lawlessness, was shown by the
Administration in the following incident. Throughout the summer and
early autumn we had continued to press for an investigation of
conditions at Occoquan, promised almost four months earlier.
October 2nd was the date finally set for an investigation to be held in
the District Building before the District Board of Charities. Armed
with 18 affidavits and a score of witnesses as to the actual conditions
at Occoquan, Attorney Samuel C. Brent and Judge J. K. N. Norton, both
of Alexandria, Virginia, acting as counsel with Mr. Malone, appeared
before the Board on the opening day and asked to be allowed to present
their evidence. They were told by the Board conducting the
investigation that this was merely “an inquiry into the workhouse
conditions and therefore would be held in secret without reporters or
outsiders present.” The attorneys demanded a public hearing, and
insisted that the question was of such momentous importance that the
public was entitled to hear both sides of it. They were told they might
submit in writing any evidence they wished to bring before the Board.
They refused to produce testimony for a “star chamber proceeding,” and
refused to allow their witnesses to be heard unless they could be heard
in public.
Unable to get a public hearing, counsel left the following letter with
the President of the Board:
Hon. John Joy Edson,
President Board of Charities,
Washington, D. C.
Dear Sir:—We are counsel for a large group of citizens, men and women,
who have in the past been associated with Occoquan work house as
officials or inmates and who are ready to testify to unspeakable
conditions of mismanagement, graft, sanitary depravity, indignity and
brutality at the institution.
We are glad you are to conduct this long-needed inquiry and shall
cooperate in every way to get at the truth of conditions in Occoquan
through your investigation, provided you make the hearings public,
subpoena all available witnesses, including men and women now prisoners
at Occoquan, first granting them immunity, and provided you give
counsel an opportunity to examine and cross examine all witnesses so
called.
We are confident your honorable board will see the justice and wisdom
of a public inquiry. If charges so publicly made are untrue the
management of Occoquan work house is entitled to public vindication,
and if these charges are true, the people of Washington and Virginia
should publicly know what kind of a prison they have in their midst,
and the people of the country should publicly know the frightful
conditions in this institution which is supported by Congress and the
government of the United States.
We are ready with our witnesses and affidavits to aid your honorable
board in every way, provided you meet the conditions above named. But
if you insist on a hearing behind closed doors we cannot submit our
witnesses to a star chamber proceeding and shall readily find another
forum in which to tell the American public the vivid story of the
Occoquan work house.
Respectfully yours,
(Signed) DUDLEY FIELD MALONE,
J. K. N. NORTON,
SAMUEL G. BRENT.
Subsequently the District Board of Charities reported findings on their
secret investigation. After a lengthy preamble, in which they attempted
to put the entire blame upon the suffrage prisoners, they advised:
That the investigation directed by the Commissioners of the District of
Columbia be postponed until the conditions of unrest, excitement, and
disquiet at Occoquan have been overcome:
That the order relieving W. H. Whittaker as superintendent, temporarily
and without prejudice, be revoked, and Mr. Whittaker be restored to his
position as superintendent:[1]
[1] Pending the investigation Mr. Whittaker was suspended, and his
first assistant, Alonzo Tweedale, served in the capacity of
superintendent.
That the members of the National Woman’s Party now at Occoquan be
informed that unless they obey the rules of the institution and
discontinue their acts of insubordination and riot, they will be
removed from Occoquan to the city jail and placed in solitary
confinement.
In announcing the report to the press the District Commissioners stated
that they approved the recommendations of the Board of Charities “after
most careful consideration,” and that “as a matter of fact, the
District workhouse at Occoquan is an institution of which the
commissioners are proud, and is a source of pride to every citizen of
the nation’s Capital.”
That the Administration was in possession of the true facts concerning
Mr. Whittaker and his conduct in office there can be no doubt. But they
supported him until the end of their campaign of suppression.
Another example of the Administration’s lawlessness appeared in the
habeas corpus proceedings by which we rescued the prisoners at the
workhouse from Mr. Whittakers custody. The trial occurred on November
23rd.
No one present can ever forget the tragi-comic scene enacted in the
little Virginia court room that cold, dark November morning. There was
Judge Waddill[2]—who had adjourned his sittings in Norfolk to hasten
the relief of the prisoners—a mild mannered, sweet-voiced Southern
gentleman. There was Superintendent Whittaker in his best Sunday
clothes, which mitigated very little the cruel and nervous demeanor
which no one who has come under his control will ever forget. His thugs
were there, also dressed in their best clothes, which only exaggerated
their coarse features and their shifty eyes. Mrs. Herndon, the
thin-lipped matron, was there, looking nervous and trying to seem
concerned about the prisoners in her charge. Warden Zinkhan was there
seeming worried at the prospect of the prisoners being taken from the
care of Superintendent Whittaker and committed to him—he evidently
unwilling to accept the responsibility.
[2] Appointed to the bench by President Roosevelt.
Dudley Field Malone and Mr. O’Brien of counsel, belligerent in every
nerve, were ready to try the case. The two dapper government attorneys,
with immobile faces, twisted nervously in their chairs. There was the
bevy of newspaper reporters struggling for places in the little
courtroom, plainly sympathetic, for whatever they may have had to write
for the papers they knew that this was a battle for justice against
uneven odds. There were as many eager spectators as could be crowded
into so small an area. Upon the whole an air of friendliness prevailed
in this little court at Alexandria which we had never felt in the
Washington courts. And the people there experienced a shock when the
slender file of women, haggard, red- eyed, sick, came to the bar. Some
were able to walk to their seats; others were so weak that they had to
be stretched out 6n the wooden benches with coats propped under their
heads for pillows. Still others bore the marks of the attack of the
“night of terror.” Many of the prisoners lay back in their chairs
hardly conscious of the proceedings which were to. free them. Mrs.
Brannan collapsed utterly and had to be carried to a couch in an
ante-room.
It was discovered just as the trial was to open that Miss Lucy Burns
and Mrs. Lawrence Lewis, who it will be remembered had been removed to
the jail before the writ had been issued, were absent from among the
prisoners.
“They are too ill to be brought into court,” Mr. Whittaker replied to
the attorneys for the defense.
“We demand that they be brought into court at our risk,” answered
counsel for the defense.
The government’s attorneys sustained Mr. Whittaker in not producing
them. It was clear that the government did not her wish to have Miss
Burns with the marks still fresh on wrists from her manacling and
handcuffing, and Mrs. Lewes with a fever from the shock of the first
night, brought before the judge who was to decide the case.
“If it was necessary to handcuff Miss Burns to the bars of her cell, we
consider her well enough to appear,” declared Mr. O’Brien. . “We
consider we ought to know what has happened to all of these petitioners
since these events. While I was at Occoquan Sunday endeavoring to see
my clients, Mr. Whittaker was trying to induce the ladies, who, he
says, are too sick to be brought here, to dismiss this proceeding.
Failing in that, he refused to let me see them, though I had an order
from Judge Mullowny, and they were taken back to the District of
Columbia. From that time to this, though I had your Honor’s order which
you signed in Norfolk, the superintendent of the Washington jail also
refused to allow me to see my clients, saying that your order had no
effect in the District of Columbia.”
“If there are any petitioners that you claim have not been brought here
because they have been carried beyond the jurisdiction of the courts, I
think we should know it,” ruled the court. “Counsel for these ladies
want them here; and they say that they ought to be here and are well
enough to b here; that the respondent here has spirited them away and
put them beyond the jurisdiction of the court. On that showing, unless
there is some reason why they ought not to come, they should be here.”
Miss Burns and Mrs. Lewes were accordingly ordered brought to court.
This preliminary skirmish over, the opening discussion revolved about a
point of law as to whether the Virginia District Court had authority to
act in this case.
After hearing both sides on this point, Judge Waddill said: “These are
not state prisoners; they are prisoners of the District of Columbia.
They are held by an order of the court claiming to have jurisdiction in
the District of Columbia. But they are imprisoned in the Eastern
District of Virginia, in Occoquan workhouse which, very much to our
regret, is down here, and is an institution that we alone have
jurisdiction over. No court would fail to act when such a state of
affairs as is set forth in this petition is brought to its attention.
“Here was a case concerning twenty-five or thirty ladies. The statement
as to their treatment was bloodcurdling; it was shocking to man’s ideas
of humanity if it is true. They are here in court, and yet your answer
denies all these facts which they submit, It is a question whether you
can do that anal yet deny these petitioners the right of testimony.”
Proceeding with this argument, the defense contended that the act
itself of the District Commissioners in sending prisoners to the
Occoquan workhouse was illegal; that no formal transfer from one
institution to another had ever been made, the sentencing papers
distinctly stating that all prisoners were committed to “the Washington
Asylum and Jail.”
“We deny that the records of the Commissioners of the District of
Columbia can show that there was any order made by the Board for the
removal of these women. The liberty of a citizen cannot be so
disregarded and trifled with that any police official or jailer may at
his own volition, commit and hold him in custody and compel him to
work. The liberty of the people depends upon a broader foundation.”
Repeated questions brought out from Mr. Zinkhan, Warden of the Jail,
the fact that the directions given by the Commissioners to transfer
prisoners from the jail to Occoquan rested entirely upon a verbal order
given “five or six years ago.”
“Do you really mean,” interrupted the court, “that the only authority
you have on the part of the Commissioners of the District of Columbia
to transfer parties down to Occoquan is a verbal order made five or six
years ago?”
Questions by the defense brought out the fact also that Mr. Zinkhan
could remember in detail the first oral orders he had received for such
a transfer, dating back to 1911, although he could not remember
important details as to how he had received the orders concerning the
suffragists committed to his care! He only knew that “orders were oral
and explicit.”
Q. [By defense in court You say the three commissioners were present?
A. Sure.
Q. Who else was present?
A. I am not sure just now who else was present. I remember somebody
else was there, but I don’t remember just who . . . .
Q. Were the three commissioners present at the time Mr. [Commissioner]
Brownlow gave you this order?
A. Yes.
Q. You say it was a verbal order of the Commissioners?
A. Yes.
Q. Was the clerk of the Board present?
A. I think not.
Q. And you cannot remember who was present aside from the three
Commissioners?
A. No, I cannot remember just now.
Q. Try to recollect who was present at that meeting when this order was
given, aside from the Commissioners. There was somebody else present?
A. It is my impression that there was some one other person present,
but I am not sure just now who it was.
Q. It was some official, some one well known, was it not . . . .?
A. I am not sure. . . .
[This conference was one in which Mr. McAdoo was reported to have
participated.]
The gentle judge was distressed when in answer to a question by the
government’s attorney as to what Mr. Zinkhan did when the prisoners
were given into his charge, the warden replied:
A. I heard early in the afternoon of the sentence, and I did not get
away from the Commissioners’ meeting until nearly 4 o’clock and I
jumped in my machine and went down to the jail, and I think at that
time six of them had been delivered there and were in the rotunda of
the jail, and a few minutes after that a van load came. The remaining
number of ten or twelve had not arrived, but inasmuch as the train had
to leave at 5 o’clock and there would not be time enough to receive
them in the jail and get them there in time for the train, I took the
van that was there right over to the east end of the Union Station, and
I think I took some of the others in my machine and another machine we
had there carried some of the others over, and we telephoned the other
van at Police Court to go direct to the east end of the Union Station
and to deliver them to me. I had of course the commitments of those
that were brought up to the jail—about 20 of them—and received from the
officer of the court the other commitments of the last van load, and
there I turned all of them except one that I kept back . . over to the
receiving and discharging officer representing the District Workhouse,
and they were taken down there that evening.
There followed some questioning of the uneasy warden as to how he used
this power to decide which prisoners should remain in jail and which
should be sent to Occoquan. Warden Zinkhan stuttered something about
sending “all the able bodied prisoners to Occoquan—women able to
perform useful work”—and that “humanitarian motives” usually guided him
in his selection. It was a difficult task for the warden for he had to
conceal just why the suffrage prisoners were sent to Occoquan, and in
so doing had to invent “motives” of his own.
Q. [By defense.] Mr. Zinkhan, were you or were you not actuated by
humanitarian motives when you sent this group of women to the Occoquan
Workhouse?
A. Yes.
Q. Were you actuated by humanitarian motives when you sent Mrs. Nolan,
a woman of 73 years, to the workhouse? Did you think that she could
perform some service at Occoquan that it was necessary to get her out
of district jail and go down there?
Warden Zinkhan gazed at the ceiling, shifted in his chair and hesitated
to answer. The question was repeated, and finally the warden admitted
uncomfortably that he believed he was inspired by “humanitarian
motives.”
“Mrs. Nolan, will you please stand up?” called out Mr. Malone.
All eyes turned toward the front row, where Mrs. Nolan slowly got to
her feet. The tiny figure of a woman with pale face and snowy hair,
standing out dramatically against her black bonnet and plain black
dress, was answer enough.
Warden Zinkhan’s answers after that came even more haltingly. He seemed
inordinately fearful of trapping himself by his own words.
“The testimony has brought out the fact,” the judge remarked at this
point, “that two of these ladies were old and one of them is a delicate
lady. Her appearance would indicate that she is not strong. Under this
rule, if one of these ladies had been eighty years old and unable to
walk she would have gone along with the herd and nobody would have
dared to say ‘ought this to be done?’ Would the Commissioners in a case
of that sort, if they gave consideration to it, think of sending such
an individual there? Was not that what the law expected them to do, and
not take them off in droves and inspect them at the Union Station and
shoot them on down? Yet that is about what was done in this case.”
In summing up this phase of the case in an eloquent appeal, Mr. Malone
said:
“Can the Commissioners, with caprice and no order and no record except
that orally given five or six years ago, and one which this warden now
says was given ‘oral and explicit,’ transfer defendants placed in a
particular institution, and under a particular kind of punishment
arbitrarily to another institution, and add to their punishment?
“Even if we admit that the Commissioners had power, did Congress ever
contemplate that any District Commissioners would dare to exercise
power affecting the life and health of defendants in this fashion? Did
Congress ever contemplate that, by mere whim, these things could be
done? I am sure it did not, and even on the admission of the government
that they had the power, they have exercised this power in such a
scandalous fashion that it is worthy of the notice of the court and
worthy of the remedy which we seek—the removal of the suffrage
prisoners from the Occoquan workhouse.”
After a brief recess, Judge Waddill rendered this decision: “The
locking up of thirty human beings is an unusual sort of thing and
judicial officers ought to be required to stop long enough to see
whether some prisoners ought to go and some not; whether some might not
be killed by going; or whether they should go dead or alive. This class
o f prisoners and this number of prisoners should haze been given
special consideration. There cannot be any controversy about this
question . . . . You ought to lawfully lock them up instead of
unlawfully locking them up—if they are to be locked up . . . . The
petitioners are, therefore, one and all, in the Workhouse without
semblance of authority or legal process of any kind . . . . and they
will accordingly be remanded to the custody of the Superintendent of
the Washington Asylum and Jail.” . . .
It having been decided that the prisoners were illegally detained in
the workhouse, it was not necessary to go into a discussion of the
cruelties committed upon the prisoners while there.
The government’s attorneys immediately announced that they would appeal
from the decision of Judge Waddill. Pending such an appeal the women
were at liberty to be paroled in the custody of counsel. But since they
had come from the far corners of the continent and since some of them
had served out almost half of their sentence, and did not wish in case
of an adverse decision on the appeal, to have to return later to
undergo the rest of their sentence, they preferred to finish their
sentences.
These were the workhouse prisoners thus remanded to the jail who
continued the hunger strike undertaken at the workhouse, and made a
redoubtable reinforcement to Alice Paul and Rose Winslow and their
comrades on strike in the jail when the former arrived.