The Jews in America Trilogy

by Birmingham, Stephen;

  Then, the question was asked me—the next question came from the same questioner, and that was: Did I approve of the taking from the banks the money of Russia? I said I did not know how much truth there was in this confiscation of wealth in Russia, but if they felt it necessary to take over wealth just as here, when we take over great aggregations of wealth for the common good—that if the people of Russia desired it, that perhaps it was right for them to do it and I would approve of it, if I felt it was in the interests of the whole people to socialize wealth.

  Another question was put to me: why I did not go back to Russia if I felt that conditions were not quite just here—and it was put indirectly. The question was asked, why don’t those who have developed power and gained comforts and wealth here, who were not born in this country, why, if they do not like certain institutions and are criticising [sic] certain institutions, why don’t they return to their own countries? Why not go back to Russia? And I arose to reply, and I said, “I presume, Madam, that you refer to me when you say that?” I said I was indeed very eager to go to Russia when the revolution took place because I did want to be helpful, and I had asked to go over, but that I was not permitted. And I instanced Emma Goldman, the case of Emma Goldman and Mr. Berkman, when they were first arrested and charged with certain violations of the law. This was before the last revolution in Russia. They were threatened by the authorities, as reported in our press, that they would be deported to Russia. This was before the revolution at all; this was before the czar had been deposed. They were threatened with deportation, and when later they were about to be tried and the revolution had occurred, they asked to be sent back—they asked to be deported to Russia, but the authorities, such was the report, refused to permit them to return.*

  And I said further that I should answer still another part of my question. This was after I had seated myself and had recalled that the question was two-sided. I said you refer to me and ask why I, who have developed in this country and have grown up here to wealth and power and intelligence, why I should criticise—why I do not go back? Well, I will tell you why I criticise our institutions and perhaps you will feel that I have some—there is some justice in my criticism of these institutions. I told her that I came here when I was eleven years of age, that I still wanted to go to school but instead I was put into a factory, that my father worked very hard and yet did not earn enough to meet the needs of his growing family, that I was the oldest of seven children. I was ten years old when the next oldest came, that the other six as they grew were all little ones, that as I became grown up the great part of the burden of supporting the family fell upon me. I said for ten years I have worked and produced things useful and necessary for the people of this country, and all those years I was half starved, I never had enough to eat, I never had a decent bed to sleep in, I sometimes slept on the floor. I was half naked; in the winter I never had a warm coat, I could not afford it. In the summer I never had a vacation, I could not afford it. For twelve years, day in and day out, for six days in the week and sometimes seven, and sometimes the whole season at a time, I worked at night in order to help out the family existence. I worked at doing useful work and never had enough. But the moment I left the useful producing class, the moment I became a part of the capitalistic class which did not have to do any productive work in order to exist, I had all the leisure I wanted, all the vacations I wanted, all the clothes I wanted—everything I wanted was mine without having to do any labor in return for all I have received. And I said, “Madam, do you think that conditions which can produce such an example as I now recite to you are conditions that are not worthy of criticism? Do you think that such conditions are just?” And she replied and shook her head and said, “No.”

  There were several odd points in her testimony that may have set the judge and jury wondering. Her charge of censorship in the press was of course offered without proof, and it was ironic that at the heart of the case were statements of her own that had been published, and perhaps ought to have been censored. And what had she meant by saying that in America it was often necessary to “take over great aggregations of wealth for the common good”? She may have been referring to income taxes, but it sounded rather threatening. And of course on at least one point she contradicted herself. She had started out by saying that she had not mentioned the Red Cross in her talk, but then said that the Red Cross had been mentioned, at least in passing.

  On cross-examination, the government prosecutor asked her one question: What was her object in arranging a series of lectures to talk about the war? She replied: “My object was to bring the people to a realization that unless we who are left at home fight for democracy where we are, the boys in the trenches may perhaps come home and find they had not gained what they wanted. I believed that in going through that tour, stirring up people to consider the questions of democracy, we were doing our part to fight for the very things our boys have gone over to fight for.”

  With that, the defense rested its case.

  The judge then turned to instruct the jury. His instruction was rambling, verbose, full of digressions, and consumed some twelve thousand words of court transcript, during the course of which there was much flag-waving and many appeals to red-blooded American patriotism. He began by reviewing the three counts of sedition with which Rose had been charged: attempting “to cause insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States”; trying to “obstruct the recruiting and enlistment service of the United States”; and conveying “false reports and false statements with intent to interfere with the operation and success of the military.”

  The “false reports,” of course, consisted of her letter to the Star. The court reminded the jury that the Star’s 440,000 papers in daily circulation not only went to thousands of Kansas City servicemen stationed at home and abroad, but was also going to young men of enlistment and conscription age—all men between the ages of eighteen and forty-five—as well as to younger men who would soon be of enlistment age. Furthermore, the newspaper circulated to the “mothers, fathers, wives, sisters, brothers, sweethearts, and friends of these men.” The aggregate total of people who could be perverted by Rose Stokes’s words he seemed to imply, was staggering. Multiply this by the mothers, fathers, brothers, and sisters of the sweethearts and friends, and it was easy to see how Rose’s thoughts could cause widespread insurrection across the face of the American continent. The court noted that an attempt had been made, during the trial, to show that the Star’s editor was equally culpable of printing the disloyal letter. This, however, the court forgave, reminding the jury that Rose had implored the editor to publish the letter, and that therefore the editor was simply being a gentleman by doing something that a lady asked. He added that, “People who … seek to promulgate their views through the press do so generally for the purpose of securing wide circulation and, if possible, adoption of those views”—no matter how dangerous or un-American those viewers might be.

  The court embarked upon a long digression on the subject of Great Britain, and its treatment of its colonies, to which there had been a reference “in a rather slighting way.” England, the court reminded the jury, was one of America’s allies. So were France and Italy. England’s colonies—Canada, Australia, New Zealand—though under no obligation to do so, had all rallied to the cause of the Mother Country and sent volunteers to aid England in its hour of conflict. English was the official language of America, yet the defendant had spoken slightingly of England. “Anything,” the court said, “which leads to a lack of cooperation, anything which in any sense and from any source weakens the manpower and fighting power of that Ally, is a blow at ourselves, and to the success of our common venture.”

  The court then got to what it felt was the heart of the matter: the defendant’s pro-Russian sentiments. “The present Bolshevist government, if it can be called a government,” said the court, “is characterized by the defendant as ideal.” The United States, on the
other hand, had been characterized as a capitalistic system that oppressed the poor and enriched the middle and upper classes. “This would include,” said the court, “all who, by industry and prudence, have made accumulation and provision for the future. The classes referred to embrace not only those of large wealth but those of modest fortune as well.” In Russia, “the workers, so-called, are permitted arbitrarily to seize and divide up the land and wealth of the country, irrespective of former ownership. If such a system were to be applied to this country, not only the so-called rich, but the small land holder, and the small merchants would be called upon to divide their holdings on a per capita or similar basis. Such are the views of this defendant.” One can only imagine that the conservative Middle Western burghers of Kansas City who comprised the jury were stabbed by fear at these dark words. Did America want its “banks and vaults broken into and the money divided among the people”?

  American democracy, the court said, might not be perfect, but it was close to it, and agencies of the United States government were already hard at work on programs to improve the conditions of the poor. Now America was at war, and it was a time for Americans to present a united front to support that war. “Individualism must be put aside for the moment in this country,” the court concluded. “We must now stand shoulder to shoulder … and that is true whatever may be her [the defendant’s] opinion about different things, that may be settled here in times of peace and within our own domestic borders. Now the hand of that sort of criticism, and the tongue of that sort of criticism must be stayed until peace is restored and we can work these things out together, as we have always worked out problems here at home.”

  In short, the court appeared to be asking the jury to return a verdict of guilty.

  And that was precisely what it did. The jury was out only twenty minutes before coming back with a verdict that found Rose Pastor Stokes guilty as charged on all three counts.

  The judge then pronounced his sentence. The defendant was to pay the costs of the prosecution, and to be imprisoned at the Missouri State Penitentiary for ten years on each of the three counts. The only leniency provided was that the three ten-year terms could be served concurrently.

  It began to seem as though the first Jewish woman in the Social Register, who may also have been the first Communist in the Social Register, might also be one of the first Social Register listees to go to jail.

  In their eighty-nine-page brief for Rose Stokes’s appeal, her attorneys were thorough, coolheaded, occasionally witty, and at all times incredulous about he way her trial had been handled. Messrs. Stedman and Sullivan claimed a total of 137 errors, which they proceeded to describe. The lawyers objected to the admission of unrelated testimony about Rose’s second Missouri speech in Neosho; to admitting the testimony of Purcell and Dillingham, the two arresting officers; to the testimony of P. S. Dee, the newspaper reporter; to the question asked of Mrs. Gebhardt as to whether or not the defendant “approved” of what was going on in Russia; and to many other fine points of law. But most of the lawyers’ objections centered on the fact that the trial had ranged far afield from the “crime” that Rose was accused of committing, which was writing to the editor and causing her letter to be published, and to the judge’s extraordinarily biased and prejudicial instruction to the jury—“an appeal to the passion and prejudice of the jury … without relation to anything in evidence in the case, and persuasive as a whole to influence the jury to return a verdict of guilty.

  “What the trial judge overlooked entirely, the gist of the whole matter,” the lawyer wrote, “is that the criminality charged against this defendant is the effect of her single communication on other minds, with the results in military obstruction by the conduct of others.” In other words, the lawyers contended, if the prosecution had been able to demonstrate that a single soldier had been insubordinate, or a single sailor had mutinied, as a result of Rose’s little letter, it might have had a case. But instead all eleven of the witnesses were quizzed on what she might not have said in her lecture—an “attempt to prove one alleged crime by another.”

  Returning again and again to the letter, the lawyers pointed out that all Rose had said was that she was against the government. By this, they insisted, she meant that she was against the Wilson administration, “in the same sense in which every person who voted for candidates of the opposition last November was against the government.” To vote for an opposition candidate, or to disapprove of what an administration was doing, was no crime. “Indeed,” the lawyers wrote, “we are against the government … in fulfilling our professional obligations to Mrs. Stokes” by taking her case, in which the government was her adversary. “Only the high temper and passion of the war spirit could account for the writing of this indictment.

  “Finally,” the lawyers added, “as to the letter and its understanding, what impact in any reading could these insignificant little sentences have to pervert the general philosophy and patriotism of any reader? Mrs. Stokes is not for the government; she is in the opposition. This is not so startling a discovery as to disrupt the mental poise of a reader.… There was no scintilla of evidence of an obstruction of the recruiting service by this letter and its dissemination. There was no evidence … that her letter constituted in any respect an interference with the success of our military forces and an aid to the military forces of the enemy.”

  And what business, her counselors wanted to know, did the judge have in bringing in this hypothetical analysis of what would happen if Russian bolshevism were transported to America?“Why is any of this material included in the charge at all?… There was nothing about the Russians in the letter which is the basis for the indictment.” The lawyers labeled this “a shocking example of judicial impropriety,” and asked, “Under what sort of doctrine of judicial notice does the trial judge give to the jury the benefit of his certainty as to Russian events? This … was more than an appeal to the passions of the jurors. It took away from the trial the character of a decorous criminal prosecution under the genius and liberality of Anglo-Saxon jurisprudence.”

  Russia had nothing to do with her letter. Neither did the loyalty of Great Britain’s colonies or the other Allies. In the course of what the lawyers termed a “meandering trial,” the judge had allowed masses of testimony on extraneous matters, such as Rose’s feelings “toward the war, the Red Cross, the Russian Revolution, Woodrow Wilson, patriotism versus internationalism, knitting socks for soldiers, and what not.”

  At the end of their brief, Rose’s lawyers rather delicately brought up the matter of her rights of free speech, as guaranteed under the First Amendment to the Constitution. It was a tricky point, because a number of prominent American jurists and thinkers had already taken the stance that there were certain clauses in the Espionage Law itself that could be interpreted as an abridgment of free speech, and that the law itself was unconstitutional. Wisely, probably, Rose’s lawyers decided to skirt this last issue, but they did note that the trial judge had stated that “individualism must be put aside for the moment in this country.” Replied the lawyers, “If by ‘individualism’ the trial judge means the sum total of our individual liberties, then he sets aside the Constitution as a war measure, and this is beyond the remotest stretch of any act of Congress. We submit that it is the most vital function of the judiciary to serve an opposite role, to hold Congress jealously to the line of immunities and liberties preserved to the individual, in war as in peace, by the guarantees of the Constitution.”

  The labors of Messrs. Stedman and Sullivan were, in the end, successful. The guilty verdict against Rose Stokes was overturned by the United States Circuit Court of Appeals, Eighth Circuit, for the Western District of Missouri, and the government dropped its case. But much damage had nonetheless been done. The publicity surrounding the trial had left Rose branded in the public’s mind as some kind of traitor or spy, involved in espionage, sedition, un-American and unpatriotic activities, against the war, opposed to the draft, in favor of a Bolshevi
st form of government, in favor of a similar revolution in America. Her lecture career—for which she had earned handsome honoraria—was over. Her name had become anathema.

  Throughout the trial, James Graham Phelps Stokes had been a model of stoic, stiff-upper-lipped, upper-crust, if unhappy, supportiveness. He had obtained leave from his army duties to be with his wife, and appeared every day at her side—looking handsome in his captain’s uniform, a walking advertisement for patriotic duty—and of course he paid the considerable legal bills that the defense of his wife had entailed. But the trial had been an emotional as well as a financial strain, and the signs of this showed in new lines of weariness on his good-looking face, as well as in the abrupt way he dismissed newspaper reporters’ questions with, “No comment.” After the appeal was won, both Stokeses did their best to withdraw from the lime-light, and to retire to their private lives. But close friends and family members suspected that the ordeal of the trial had been a final test of the patience of Graham Stokes with his irrepressible Jewish wife, that the test had been failed, and that it was only a matter of time.…

  For America’s Eastern European Jews, 1919 would be a kind of watershed year. Three seemingly unconnected events—the outcome of the Russian revolution in 1917, the end of the First World War in 1919, and the advent of Prohibition that same year—would interweave and mesh in such a complex way, each event exerting a subtle but powerful force upon the others, that thousands of lives would be affected by their confluence.