Chapter 21

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.