Part 20

I stayed overnight at the Raymond Street Jail, and I shall never forget it. The mattresses were spotted and smelly, the blankets stiff with dirt and grime. The stench nauseated me. It was not a comforting thought to go without bedclothing when it was so cold, but, having in mind the diseased occupants who might have preceded me, I could not bring myself to creep under the covers. Instead I lay down on top and wrapped my coat around me. The only clean object was my towel, and this I draped over my face and head. For endless hours I struggled with roaches and horrible-looking bugs that came crawling out of the walls and across the floor. When a rat jumped up on the bed I cried out involuntarily and sent it scuttling out.

My cell was at the end of a center row, all opening front and back upon two corridors. The prisoners gathered in one of the aisles the next morning and I joined them. Most had been accused of minor offenses such as shoplifting and petty thievery. Many had weatherbeaten faces, were a class by themselves, laughing and unconcerned. But I heard no coarse language. Underneath the chatter I sensed a deep and bitter resentment; some of them had been there for three or four months without having been brought to trial. The more fortunate had a little money to engage lawyers; others had to wait for the court to assign them legal defenders.

While I was talking to the girls, the matron bustled up with, “The ladies are coming!” and shooed us into our cells. The Ladies, a committee from a society for prison reform, peered at us as though we were animals in cages. A gentle voice cooed at me, “Did you come in during the night?”

“Yes,” I returned, overlooking the assumption that I was a street walker.

“Can we do anything for you?”

The other inmates were sitting in their corners looking as innocent and sweet as they could, but I startled her by saying, “Yes, you can. Come in and clean up this place. It’s filthy and verminous.”

The Committee departed hurriedly down the corridor. One more alert member, however, came back to ask, “Is it really very dirty?”

Although I told her in some detail about the blankets, the odors, the roaches, she obviously could not picture the situation. “I’m terribly sorry, but we can’t change it.”

I was still exasperated over this reply when I was called to the reception room to give an interview to reporters. In addition to answering questions about the raid I said I had a message to the tax-payers of Brooklyn; they were paying money to keep their prisons run in an orderly fashion as in any civilized community and should know it was being wasted, because the conditions at Raymond Street were intolerable.

My bail was arranged by afternoon and when I emerged I saw waiting in front the woman who was going to swallow the glass; she had been there all that time.

I went straight back to the clinic, reopened it, and more mothers came in. I had hoped a court decision might allow us to continue, but now Mr. Rabinowitz came downstairs apologetically. He said he was sorry, and he really was, but the police had made him sign ejection papers, on the ground that I was “maintaining a public nuisance.”

In the Netherlands a clinic had been cited as a public benefaction; in the United States it was classed as a public nuisance.

Two uniformed policemen came for me, and with them I was willing to ride in the patrol wagon to the station. As we started I heard a scream from a woman who had just come around the corner on her way to the clinic. She abandoned her baby carriage, rushed through the crowd, and cried, “Come back! Come back and save me!” For a dozen yards she ran after the van before someone caught her and led her to the sidewalk. But the last thing I heard was this poor distracted mother, shrieking and calling, “Come back! Come back!”

_Chapter Eighteen_

LEAN HUNGER AND GREEN THIRST

“_All that we know who lie in gaol Is that the wall is strong; And that each day is like a year, A year whose days are long._” OSCAR WILDE

Looking back upon this period fraught with emotional distress, I have no regrets. But, looking ahead, I am grateful that there looms no necessity for repeating those passionate, dangerous, and menacing days.

Out of the raid four separate cases resulted: Ethel was charged with violating Section 1142 of the Penal Code, designed to prevent dissemination of contraceptive information; Fania with having sold an allegedly indecent book entitled _What Every Girl Should Know_; I, first, with having conducted a clinic in violation of the same Section 1142, second, with violating Section 1530 by maintaining a public nuisance.

I claimed that Section 1142 which forbade contraceptive information to, for, and by anyone was unconstitutional, because no state was permitted to interfere with a citizen’s right to life or liberty, and such denial was certainly interference. Experience had shown it did the case no good merely to defend such a stand in a lower court; it must be carried to a higher tribunal, and only a lawyer versed in whereases and whatsoevers and inasmuch-ases could accomplish this. But I was still hopeful of finding one who was able to see that the importance of birth control could not be properly emphasized if we bowed too deeply before the slow and ponderous majesty of the law.

The attorney who offered himself, J. J. Goldstein, had a background which made him more sympathetic than other lawyers, even the most liberal. He was one of those young Jewish men of promise who had been guided through adolescence by Mary Simkhovitch, founder of Greenwich House, and Lillian Wald, founder of the Henry Street Settlement. The seeds of social service had been planted in him; his legal training only temporarily slowed down their growth.

J.J. had placed himself in a difficult position for a youthful Tammany Democrat, some day to be a magistrate; he might have been forgiven more easily had he received a larger fee. Though he had to be convinced that we declined to have anything to do with political wire-pulling, he fought for us valiantly.

November 20th we pleaded not guilty and trial was set for November 27th. J.J. endeavored to have the three of us tried simultaneously, but the Court of Special Sessions would have none of it. Then he asked for a jury trial, which could be granted at the discretion of the Supreme Court; application was denied. An appeal to the Appellate Division was dismissed; writs of habeas corpus were dismissed; another appeal to the Appellate Division was dismissed; adjournments pending appeal were urged but not granted. Indeed I was being swiftly educated in the technicalities of criminal law.

I felt like a victim who passed into the courtroom, was made to bow before the judge, and did not know what it was all about. Every gesture had its special significance, which must not be left out if appeals were to be possible. We had to make many more appearances than would otherwise have been necessary; everything had to be correctly on the record.

Evening after evening J.J. rehearsed the arguments he was going to present and directed me to respond to questioning. I did not understand the technicalities and begged to be allowed to tell the story in my own way, fearful lest the heartaches of the mothers be lost in the labyrinthine maze of judicial verbiage. But he maintained if the case were to be appealed to a higher court, it had to be conducted according to certain formalities.

“Why should it have to be in legal language?” I demanded. “I’m a simple citizen, born in a democratic country. A court should also listen to my plea expressed in plain language for the common people. I’m sure I can make them understand and arouse their compassion.”

He reiterated that I could not address a court as though I were trying to instil my views in an individual. “You can’t talk to them that way. You’ll have to let me talk.”

“But that’s the way I talk and I’m the accused.”

I fully expected that if I were permitted to set forth my human version of the Brownsville tragedies, no appeal would be required. But J.J. knew the courts and had no such hopes. He was still doubtful of any success before the lower tribunal, and was still unable to see my point, counting chiefly on technicalities to win the case.

J.J. had formally objected to having our trial set during the November session because Justice McInerney was due to preside that month, and at previous trials he had expressed biased opinions. This objection was overruled.

The strictly legal method having failed, I resorted to my own and wrote Justice McInerney an open letter:

As an American pledged to the principles and spirit in which this Republic was founded, as a judge obligated by oath to fair and impartial judgment, do you in your deepest conscience consider yourself qualified to try my case?

In those birth control cases at which you have presided, you have shown to all thinking men and women an unfailing prejudice and exposed a mind steeped in the bigotry and intolerance of the Inquisition.

To come before you implies conviction.

Judge McInerney “made application to the District Attorney to be taken off this case.”

Trial was marked for January 4, 1917, but the first case, that of Ethel, was reached so late in the afternoon it had to be postponed. Four days afterwards, in spite of our attempts to be tried together, she appeared alone. She freely admitted she had described birth control methods but denied the District Attorney’s accusation that our ten-cent registration fee made it a “money making” affair. This and other sensational charges, such as “the clinic was intended to do away with the Jews” were often inserted in the records for reporters to pick up, make good stories of them, and in consequence influence newspaper readers against us. They were great stumbling blocks.

Our most important witness, Dr. Morris H. Kahn, physician in Bloomingdale’s Department Store who also maintained a private clinic where he gave out birth control information, was ready to testify, but his evidence was ruled out as “irrelevant, incompetent, and immaterial.” To be sure the charge against Ethel was as a lay person; nevertheless, it was extraordinary that we could get no hearing for a doctor. J.J. was allowed only fifteen minutes to present his argument on the unconstitutionality of Section 1142, and the presiding Judge decided that the court was bound to hold it constitutional on precedent, regardless of argument.

Ethel was found guilty.

In the two weeks before sentence was to be pronounced we debated what she and I should do. Perhaps it could be stayed, which would settle everything, but we each had to be prepared for either a short term of imprisonment or a long one. In case of the former, submission was the wiser course, because the public would not consider it of sufficient moment to bestir itself; in the latter event, a hunger strike seemed indicated, but, again, only if sufficient attention could be called to it.

The New York _World_ had the most liberal policy of all the leading morning dailies, and therefore appeared to offer the best likelihood of being favorably disposed. I approached one of its editors and asked whether he would print our entire story if I were to give him a scoop and guarantee accuracy. He agreed, and assigned us a special reporter.

Ethel was sentenced January 22nd to thirty days in the Workhouse on Blackwell’s Island in the East River. In spite of our discussion over this possibility, she was utterly shocked, and exclaimed, “I’m going to go on that hunger strike.”

After spending the night in the Tombs, she was returned the next morning to the Federal District Court of Brooklyn on a writ of habeas corpus as a means of suspending sentence pending appeal. Daylight had brought no change in her determination to continue with the hunger strike. “I haven’t had anything to eat yet,” she declared, and, remembering the tale that one hunger striker had received nourishment in her cups of water, she added, “and, if they send me back, I shan’t drink anything either.”

Neither J.J. nor I considered such a short sentence worth breaking your life for. Furthermore, the cause did not mean to Ethel what it did to me. “Think this over very carefully,” I reminded her. “A hunger strike is not necessary, and if you once start you’ll have to keep it up.” She insisted that she was ready to die if need be; she had made her will and arranged for the disposition of her two children—the hunger strike was to go on. The writ was refused and she was remanded to the Workhouse. On her way there she told the women with whom she shared the patrol wagon the salient facts of birth control.

When Commissioner of Correction Burdette G. Lewis was asked to comment on Ethel’s decision he scoffed. “Others have threatened hunger strikes. It means nothing.” At first no food at all was brought her, but after the publicity began the authorities were in despair to make her eat. This was a case they did not know how to handle; they were mentally unprepared for prisoners who were guilty of performing a legal wrong in order to win a legal right.

Ethel had gone one hundred and three hours without eating when Commissioner Lewis established a precedent in American prison annals by ordering her forcibly fed, the first woman to be so treated in this country. He stated optimistically to the press how simple the process was, consisting of merely rolling her in a blanket so she could not struggle, and then having milk, eggs, and a stimulant forced into her stomach through a rubber tube. He stressed how healthy she continued to be, how little opposition she offered, how foolish the whole thing appeared to him anyhow; he was going to charge her for the expense incurred in calling in an expert to feed her.

As soon as I heard my sister was “passive under the feeding” I became desperately anxious about her; nothing but complete loss of strength could have lessened her resistance.

After one interview Commissioner Lewis had barred all reporters and given out a statement of his own. “I have not much patience with Mrs. Byrne’s efforts to get advertising for her cause, and I won’t help such a campaign along by issuing bulletins.”

But bulletins were being issued, nevertheless—and printed.

From prearranged sources I was receiving messages and notes each evening, and reports on Ethel’s pulse and temperature. Thus I learned her vision was becoming affected and her heart was beginning to miss beats, due to lack of liquids. “Going without water was pretty bad,” she said herself. “At night the woman whose duty it was to go up and down the corridors to give the prisoners a drink if they wanted it stopped right by my cell and cried, ‘Water! Water!’ till it seemed as if I could not stand it. And on the other side of me was the sound of the river through the window.”

Nobody was allowed to visit Ethel but J.J., who, as her lawyer, could not well be refused. But reporters have their own mysterious ways of getting what they want. The _World_ man succeeded in reaching her. It was not on the whole a successful interview, because she did not know who he was, but it did have one important result—it confirmed at first hand our statements as to the seriousness of her condition.

In the midst of my anxiety over Ethel, my own trial opened January 29th in the same bare, smoky, upstairs Brooklyn court in which she had appeared. Justices John J. Freschi, Italian, Moses Herrmann, Jewish, and George J. O’Keefe, Irish, sat on the bench. Judge Freschi, a rather young man, presided, and on him we pinned our hopes. We did not expect anything of old Judge Herrmann except that, because he was Jewish, he might be broad-minded. As to Judge O’Keefe we had no illusions.

No less than thirty of the mothers of Brownsville had been subpoenaed by the prosecution, but about fifty arrived—some equipped with fruit, bread, pacifiers, and extra diapers, others distressed at having had to spend carfare, timid at the thought of being in court, hungry because no kosher food could be obtained near by. Nevertheless, all smiled and nodded at me reassuringly.

Formerly, a few women of wealth but of liberal tendencies had been actively concerned in the movement, but now some who were prominent socially were coming to believe on principle that birth control should not be denied to the masses. The subject was in the process of ceasing to be tagged as radical and revolutionary, and becoming admittedly humanitarian.

In this room, side by side with the ones to be helped, sat new helpers. Among them was Mrs. Amos Pinchot, Chairman of the Women’s Committee of One Hundred, formed to lend support to the defense. Her reddish hair betrayed a temper quick and easily aroused in the cause of justice. Aristocratic of bearing, autocratic by position, she was one to command and be obeyed, and was easily a leading personality in the philanthropic smart set of New York. Among her valuable services was the bringing into the fold of the mothers and aunts of the present active Junior Leaguers.

Mrs. Lewis L. Delafield’s limousine stood in front of the doors at almost every trial and it meant a great deal to the defendants to have the wife of one of the most eminent members of the New York bar in the courtroom. By her very demeanor and looks—white-haired, a fragile countenance—you knew she could touch nothing that was not fine, and that she had the spiritual courage to stand by her ideas and ideals in both her public and private life. Always she opened her home and her heart and her arms to those she loved.

Fania was called first. She was a girl with a pale and delicate face, and was too worried to bear the strain. She should not be punished for co-operating, and I told J.J. to notify the court that she was not well, though I strictly forbade him to say anything about my health. Her trial was brief, narrowing itself down to whether _What Every Girl Should Know_ was to be classed as indecent. A few days later she was found guilty and sentenced to fifty dollars’ fine, a decision which was eventually reversed on appeal.

It surprised me that in my trial the prosecution should be carried on so vehemently, because the prosecutor had little to prove. To me there seemed to be no argument at all; the last thing in my mind was to deny having given birth control advice. Certainly I had violated the letter of the law, but that was what I was opposing.

I grew more and more puzzled by the stilted language, the circumlocutions, the respect for precedent. These legal battles, fought in a curiously unreal world, intensified my defiance to the breaking point. I longed for a discussion in the open on merit and in simple, honest terms.

I thought I might have my wish when Judge Freschi, holding up a cervical cap which the prosecuting attorney had put in evidence, said, “Who can prove this is a violation; the law states that contraception is permitted for the prevention of disease. May it not be used for medical reasons?”

This question raised my hopes high. At last the law might be interpreted according to the definition I so desired; ill health resulting from pregnancy caused by lack of its use might be construed as disease.

Then one by one the Brownsville mothers were called to the stand to answer the District Attorney. “Have you ever seen Mrs. Sanger before?”

“Yess. Yess, I know Mrs. Sanger.”

“Where did you see her?”

“At the cleenic.”

“Why did you go there?”

“To have her stop the babies.”

The witness bowed sweet acknowledgment to me until she was peremptorily commanded to address the court.

“Did you get this information?”

“Yess. Yess, dank you, I got it. It wass gut, too.”

“Enough,” the District Attorney barked, and called another.

Time after time they gave answers that were like nails to seal my doom, yet each thought she was assisting me.

J.J. saw how their testimony could be turned to our advantage.

He asked, “How many miscarriages have you had? How much sickness in your family? How much does your husband earn?” The answers were seven, eight, nine dollars a week.

At last one woman more miserable and more poverty-stricken than the rest was summoned. “How many children have you?”

“Eight and three that didn’t live.”

“What does your husband earn?”

“Ten dollars a veek—ven he vorks.”

Judge Freschi finally exclaimed, “I can’t stand this any longer,” and the court adjourned over the week-end.

J.J. was jubilant, because he said there was nothing for him to do; the court was arguing his case for him.

I myself was feeling a little conscience-smitten. A mass meeting of sympathizers had been organized by the Committee of One Hundred for that evening in Carnegie Hall, and I went straight there from the courtroom. I had a speech ready in which I said we were being persecuted, not prosecuted; that the judges were no better than witch-burners. It was unfortunate, but copies had already been released to the press and the wording could not be changed.

Helen Todd, the Chairman, a grand person who had been trained under Jane Addams, had given the mothers of Brownsville places of honor on the platform to let everybody see what kind of women we were fighting for. She asked for twenty volunteers to follow the example of the English suffragettes who had gone on hunger strikes en masse, but no women whose names registered socially in the public mind were willing thus to join in protesting against the law; only working girls came forward.

Three days later Jessie Ashley and I took the train for Albany with Mrs. Pinchot, who was a close friend of Governor Charles S. Whitman, to ask him to appoint a commission to investigate birth control and make a report to the State Legislature. The Governor, who was fair and intelligent, quite distinctly representing a class of liberal politicians, received us cordially.

Ethel and her hunger strike had been front-page news for ten days; in the subway, on street corners, everywhere people gathered, she was being discussed. In Washington and Albany congressmen and legislators were sending out for the latest details. Governor Whitman naturally asked about her, and we seized the opportunity to try to impress on him the outrageousness of making her suffer for so just a cause. He said directly her incarceration was a disgrace to the State. He was entirely out of sympathy with the courts and judges, and offered a pardon conditional upon her ceasing to disseminate birth control information.

But I had not come to ask that favor.

“My sister wouldn’t take a pardon,” I replied, much to the distress of Mrs. Pinchot. However, I accepted gratefully his letter to the warden at Blackwell’s Island authorizing me to see her.

The next morning I appeared again before the court. During the three-day interim the effect of the mothers’ testimony had evidently been effaced from the judges’ minds, and they were infuriated by my Carnegie Hall denunciation. But far more detrimental to my hope of a new interpretation was the prosecution’s introduction of a Federal agent who had once confiscated a copy of _Family Limitation_ in which was the picture of this same cervical cap; he read aloud my advice to women to use it as a means of preventing conception. Not even the most friendly judge could get away from the fact that I had intended a far broader definition than any permitted by the existing law.

The prosecution argued further that the constitutionality of Section 1142 could not be challenged, because the exception for physicians in Section 1145 already guaranteed “liberty” to citizens. And, since I was not a physician and consequently did not come under the exception, the court must, in any event, find me guilty. This they did.