Document 6A: William E. Zeuch, The Truth about the O'Hare Case (St. Louis: F. P. O'Hare, ), pp. 3-19.
In 1919, William E. Zeuch went to Bowman, North Dakota to research the circumstances of O'Hare's arrest and investigate the political climate leading up to her trial. Zeuch had worked with O'Hare in 1916-17 when she had visited Ruskin College, a labor college in Florida, to investigate opening a labor college on a commune in Louisiana. In this report, Zeuch examined in great detail the political background of Bowman, including the history of the town and its major political figures and factions. Essentially, a dispute between James E. Phelan, the town's powerful banker, and E.P. and Lillian Totten, the town's State Attorney and postmistress had reached its height in July 1917 at the time O'Hare lectured. Apparently angered at his recent political unseating, Phelan turned to North Dakota Senator Porter J. McCumber, intending to bring charges against the postmistress. O'Hare became a target only after attacks on the Tottens failed. Zeuch's report included copies of the indictment, speeches made by McCumber on the Senate floor, as well as O'Hare's remarks prior to sentencing. O'Hare, a powerful orator, had taken the stand in her own defense during the trial and made a stirring speech prior to sentencing (see Document 6B). Directly following the speech, which probably further infuriated Judge Martin Wade, a vocal anti-socialist, O'Hare was sentenced to five years in prison for violating the Espionage and Sedition Acts.
The Truth About the Kate Richards
By W. E. Zeuch, A.M.
Sometime Fellow in Sociology, Clark University.
When the Associated Press reported during the summer of 1917 that Kate Richards O'Hare had been arrested for violation of the Espionage Act, her friends and acquaintances in America and throughout Europe who know her and her uncompromising passion for humanity and her unflagging zeal for fundamental democracy, thought that undoubtedly she had fallen victim to the ignorance or malevolence of some petty official whose conception of democracy was of a blindly partisan brand and that a hearing on the charges before some competent official would set her free.
The language imputed to her in the indictment returned by the grand jury was so needlessly offensive and insulting that no one who knew Mrs. O'Hare would believe for one moment that she who held life and motherhood to be so sacred was guilty of offending the mothers of America. She was incapable of such a deed at any time, much less in the hour of their Gethsemane.
When, however, the news was flashed over the country during the holidays of 1917 that Judge Wade of Iowa had sentenced her to five years in the prison at Jefferson City, Mo., a shock surged through the heart of every person who had been privileged to know this remarkable woman during the twenty years of her crusade for social justice. The sentence was thought to be particularly inauspicious at a time when the President was trying to convince the radical and liberal elements in Russia and the Central Powers that we, as a nation, were fighting to make the world safe for democracy. That a woman who had devoted her life to a furtherance of real democracy and who was well known to the radical and liberal element upon the continent, should be sentenced to five years in the federal prison upon such flimsy evidence was very irritating and disquieting and had only an embittering effect upon those liberal elements that the administration was trying to rally to its support.
It is, however, when we examine the basis of the charges against Mrs. O'Hare, and when we study the local conditions at Bowman, N. D., out of which the charges grew, that we are astounded and dumfounded at the verdict of the jury and the sentence of the judge.
The writer of the following study of the case has traveled thousands of miles and spent many weeks in collecting and verifying the data used as a basis for the following history of the case. We now give it to the public in hope that justice may be done a woman innocent of the charges upon which she was convicted and sentenced to serve five long years in the federal penitentiary.
"We have been unable to secure anything specific on her that would be a violation of Federal Law--Nothing would please this office better than to hear that she got LIFE."
--Extract from letter of Department of Justice quoted by Judge Wade.
A little more than a decade ago the present site of Bowman, N. D., was a virgin prairie. The landscape failed to disclose any signs of a settlement or of civilization, except for the wandering herds that now and then grazed over the unplotted and even undreamed-of townsite, or which huddled together a half mile away on the south slope of the Twin Buttes to escape the chill northern winds.
In 1907 the Puget Sound extension of the Chicago, Milwaukee and St. Paul Railroad was built through that section of North Dakota lying west of the Missouri River and known as the Slope Country. Towns sprang up and counties were carved out of the undivided plains. The county and town of Bowman date from that period.
On July 23, 1917, there appeared a report of a speech by Senator McCumber in the United States Senate, which for the moment made Bowman famous.
It announced the battle between James E. Phelan, banker and politician of Bowman, and Kate Richards O'Hare, Phelan to recover his political prestige by sending Mrs. O'Hare to prison; Kate Richards O'Hare to retain her liberty, her reputation and her right to rear her four children.
Phelan mustered his friends and adherents to convict Mrs. O'Hare of violating the Espionage Act.
The friends of Kate Richards O'Hare rallied to save her to her young children.
The events can only be understood by studying certain citizens of Bowman--James E. Phelan, George and E. P. Totten and Lillian B. Totten--and the political feud between Phelan and the Tottens, which dated back to the birth of Bowman.
James E. Phelan.
With the opening of Bowman County in 1907 came James E. Phelan. He was at that time a successful rancher. Buying building materials, he hauled it 85 miles overland, built The First National Bank and had it in operation by the time the railroad entered the new townsite.
From Mr. Phelan's advance press notices we learn that he is president of the First National Bank of Bowman, N. D.; president of the First National Bank of Marmarth, N. D.; president Farmers' State Bank, Buffalo Springs, N. D.; president Western Lumber and Grain Co., Bowman, N. D.; president of the North Dakota Bankers' Association, and member of Minneapolis Chamber of Commerce. That he was born in Michigan in 1857, educated in the public and high schools there, was locomotive fireman, engineer, master mechanic, and finally division superintendent, the latter at Dickinson, N. D.; secretary of the North Dakota Railroad Commission, 1895-1899; member of the North Dakota Legislature from Dickinson in 1907.
From this it will be seen that Mr. Phelan was a so-called "self-made man." He threw his lot in a new, undeveloped country and grew with it, helped to make it grow. Resourceful, energetic and successful, with wide acquaintanceship, he certainly looked forward to rounding out his career as the leader in affairs and politics in western North Dakota. One finds much to admire in Phelan's strength, persistence and force. It takes force of character to accomplish what he has accomplished.
Unfortunately for his ambition to sit in the national legislative halls, and to be the political as well as financial manager of his section, he failed to take account of the shifting political situation in his state. During all its history the farmers had been divided along political lines, thus permitting the railroad, banking and commercial interests to have the political leadership of affairs in North Dakota. But a change came over the farmers of North Dakota. They organized to capture the political power for themselves. They organized to take over control of their banking and commercial interests in the name of the state. And in time James
E. Phelan found himself on the losing side of this political struggle.
The brothers, George and E. P. Totten, were born in England, and spent their early childhood there. While young their parents removed to Canada. Some years later the brothers came to North Dakota, and have since resided in that state.
George P. Totten was educated for the ministry, while E. P. Totten chose the law, completing the course at the Law College of North Dakota.
When the town and county of Bowman were founded, the Governor appointed E. P. Totten to the position of State's Attorney in the new county, and he took up the work in 1908. About the same time George Totten became the minister of the Congregational Church in the same community.
George P. Totten was a member of the Republican party, while E. P. Totten was a member of the Democratic party; but both of them were progressive and liberal in their views, and have kept themselves posted on the liberal thought and movements of the times. Consequently, in every division of opinion in their respective parties they always upheld the progressive wings.
George Totten is one of the State Regents of North Dakota.
E. P. Totten is at present County Judge of Bowman County. His wife, Lillian B. Totten, was Postmistress of Bowman in 1917.
The Phelan-Totten Political Feud.
James E. Phelan entered Bowman County politics with years of experience, means and prestige. For a while he had things pretty much his own way. The offices that were worth controlling were under his control. During the first years the county printing went to Phelan's faithful henchman; very naturally the county funds were deposited in Phelan's banks, and the County Judge never in any decision injured the interests of Mr. Phelan.
But in time opposition to the Phelan regime arouse under the leadership of the Totten brothers. E. P. Totten became editor of the Bowman County Citizen, and the battle was on. E. P. Totten soon found himself in conflict with the "pillars" of his church, mostly merchants who were customers of Phelan's bank. After a vote of approval from the majority of his congregation, he resigned his pastorate and entered upon the management of his brother's paper. Here his attacks on Phelan's methods brought on him several suits for libel, but Phelan never pushed them to an issue in court. He merely exhausted the Totten finances by inducing
the merchants who received "favors" from the bank to withdraw their advertising from the Totten paper. As Phelan's purse was longer than that of the Tottens, the latter was compelled to sell his paper, but E. P. Totten kept up the fight, meantime maintaining his position as State's Attorney.
The national election of 1912 gave the Democratic Party control of the federal patronage, and E. P. Totten, as the leader in his section of the state, virtually nominated the postmasters in several counties. About the same time the opposition to the Phelan interests grew strong enough to wrest several county offices from Phelan's control. It seems that Phelan had received the contracts to supply seed wheat to the farmers of several counties, and it is alleged that when it was delivered it was of such poor quality that the farmers made an outcry. Thus Phelan's prestige sunk still lower.
The Non-Partisan League Formed.
In 1915 the Nonpartisan League of North Dakota was formed. The Tottens gave the league their support. Phelan feared, ridiculed and antagonized it. He knew well that the League program was aimed to take away from him his privilege to weigh and grade the grain at his string of elevators, and could curb the interest rate prevailing at his banks. The farmers captured control of the Republican Party of North Dakota, and Phelan saw his last faint hopes of political success fade away.
When the Republican Party went down to defeat in the National elect of 1916, Phelan was again completely disappointed, as it removed the means whereby he could reward some of his camp followers. His protege, James E. James, had hoped for the post-office in case of Hughes' victory. The post-office went to Mrs. Lillian Totten, wife of Judge Totten.
This was gall and woodworm, indeed; possessing wealth, ability, state-wide influence, and ambition to hold some worthwhile office, and to be thwarted in every direction. A cruel wit of Bowman remarked: "Politically Jim Phelan is all dressed up, and has no place to go."
In July, 1917, the Phelan-Totten feud, now the "stand-pat Nonpartisan League" feud, was at its bitterest point. The Tottens were the chief political factors in the southwest corner of North Dakota. Phelan was nursing his bitterness and disappointment and eagerly watching and waiting for an opportunity to get back at the man whom above all others he blamed for his defeats.
Phelan became very active in war activities. He organized the Home Guard, and secured the election of his able-bodied young
son as captain, to defend the country from the trenches on the Twin Buttes. He also saved his nephew for war work at home, and when the Government Appeal Agent took the nephew's case to the District Board Phelan wrote the board about the matter, showing that it was a move of his political enemies to get the nephew into the ranks.
Then he began the drive against Postmistress Totten.
There was a lone Socialist in Bowman, named McPharlin. He had arranged with Kate Richards O'Hare, of St. Louis, to stop at Bowman for a lecture. He had sold tickets at 25c apiece to his neighbors. Kate Richards O'Hare spoke in Bowman on July 17, 1917, giving the same address that she had previously given in the St. Louis High School, and in seventy cities and towns from Birmingham to Los Angeles and Seattle.*
Kate O'Hare Speaks in Bowman.
Mr. And Mrs. Totten attended the lecture, listened, laughed, applauded, just as 141 of their neighbors did. Two members of the Phelan faction, among them James E. James, were there. The next day things began to happen in Bowman. Phelan had at last gotten his chance. He grabbed it. What happened is best told in the speech of Senator McCumber delivered in the Senate July 23, 1917, and reported in the St. Louis Globe-Democrat of the following day. The article in part, follows:
ON FLOOR OF SENATE
OF BEING TRAITOR TO U.S.
McCUMBER CHARGES BOWMAN,
N. D., OFFICAL APPLAUDED
KATE O'HARE'S SPEECH.
Washington, July 23.--"Copperheads and traitors in Bowman, N. D., seek to undermine their own government," Senator McCumber of North Dakota declared today on the floor of the Senate.
He called the attention of the Postmaster-General to statements that the postmistress at Bowman and her husband had applauded sentiments toward the draft.
When McCumber rose today his face was hard and set.
"I am speaking to the president of the United States and through him to the Postmaster-General. And I say that
there are no more unpatriotic and treacherous persons in the United States than some of their appointments in my state.
"I don't hold the president himself responsible. But I want to know if the Postmaster-General will be as active in putting traitors out of office as he was in putting Republicans out of office so he could put Democrats in.
"I call this matter to the attention of the Postmaster-General again," repeated McCumber, after letters regarding the speeches in Bowman had been read.
"Unless he takes cognizance of this matter then there are patriotic persons in the State of North Dakota who will take cognizance of it--and in their own way."
Letters produced by the North Dakota senator recited that the speaker to which he referred was Kate Richards O'Hare, former editor of the National Ripsaw.
"The postmistress here is well known to be in sympathy with speakers and principles of this kind. The husband of the postmistress and who is really the controlling influence in the post-office, is one of the leaders in the distribution of propaganda of this kind, and in fact, he has in the post-office made slurring remarks about the American flag to a patron who came into the post-office wearing an American flag on the lapel of his coat.
The records show that Lillian B. Totten was appointed postmistress at Bowman, N. D., in Janurary, 1916.--From St. Louis Globe-Democrat, St. Louis, Tuesday morning, July 24, 1917.
It will be seen from the above that the attack was made on the POSTMISTRESS of Bowman. Mrs. O'Hare was mentioned incidentally. The complete record of McCumber's remarks and the letters sent to him from Bowman strengthen this statement. The fight was primarily on Mrs. Totten.
In the Congressional Record of July 23, 1917, appears the following report of the address by Senator McCumber, of North Dakota, in the senate, referred to in the above press report:
DISLOYAL UTTERANCES IN NORTH DAKOTA.
Mr. McCUMBER. Mr. President, I have received a large number of letters from constituents in my State appealing to me to ascertain some means by which they could rid themselves of copperheads and traitors in their midst. I have felt that there was no better or more appropriate time than this time to read one of those letters into the Record, that I may speak to the President of the United States, and through the President of the Untied States to the Postmaster-General concerning the loyalty and patriotism of some of those whom they have appointed and who are now holding Federal positions in my own State, and leave it with the President and the Postmaster-General to determine whether or not the latter--because I do not hold the President himself responsible
for these appointments--will be as active in putting traitors out of the post-offices as he was active in getting Republicans out, that their places might be filled by others.
I want to call attention to one little incident in one of the small towns in my State where a lecturer was entertained and dined by the postmistress the next day after the lecture. In this lecture she referred to the American mothers who had sent their sons to die in France as brood sows, producing only for slaughter for the protection of J. P. Morgan's millions, or words of like import. She referred to the soldiers who had responded to the call of President Wilson, who did not wait to be drafted but who answered his first call and enlisted as volunteers in the Army and Navy, as fit only for use in France as fertilizer.
I ask that one of these letters may be read without the name. I will read one other letter, or a portion of it, and let the Postmaster-General know in this way that unless he takes cognizance of matters of this kind there are patriotic people in the State of North Dakota who are liable to take the matter into their own hands and deal with it in their own way.
I ask that the Secretary may read this letter, omitting the name. I want to say that I omit the name simply because I have not had authority to use it; but I know the gentleman who writes, and I am positive that he would be willing that I should use the name, as he is not lacking in courage.
The PRESIDING OFFICER. The Senator from North Dakota asks that the letter may be read without using the name. Is there objection? The Chair hears none.
The Secretary read as follows:
Bowman, N. Dak., July 18, 1917.
Hon. P. J. McCumber,
Senate Chamber, Washington, D. C.
Dear Sir--The people out in this part of the State of North Dakota, who are really Americans and who feel it their duty to support the Government, and who are doing their utmost to support the Government and assist in any way possible during these critical times, have been consulting together relative to what steps should be taken in order to suppress sedition and disloyalty toward the Government. It seems that the authorities in this immediate vicinity either do not want to or else do not understand how to render such aid and assistance to the Government as should be at this time. After consultation these citizens requested me to take the matter up with you in hopes that you may be able to break through or get behind the breastworks of the coterie which upholds such disloyalty. I do not know whether or not you have any means of bringing the condition which exists here directly before the authorities who should deal with them, but the condition has become such that unless the Federal Government takes a hand in the matter the good citizens of this community, those who are real Americans, will take matters into their own hands with possibly serious results.
Last night we had a speaker here in town by the name of Kate Richards O'Hare, who, I was informed, was a former editor of the National Ripsaw. Her entire speech, I was informed, as I was not myself present, was of an anarchistic variety, tending in its entirety toward the discouraging of enlistment and resistance of draft. Among other statements, she stated that it was a good thing that those who enlisted did so, as they were no good and only fit for fertilizer anyhow. Those few from here who have enlisted in the Navy and are not yet called into active service are today being ridiculed and made the object of derision by this same coterie of traitors, and it really seems to us that after these young men have offered their services to the Government and have been accepted--and they are splendid young men, the kind that make American citizens that we are proud of--that the Gov-
ernment owes them the duty of protection from attacks of this kind, and the sentiment here is such that if the Government refuses, fails, or is unable to do so, the citizens here who are friends of these volunteers and who recognize their sterling and honorable qualities, will do so. These citizens, however, are peaceful and law-abiding citizens and desire to bring the matter before the constituted authorities. A telegram has been sent to our United States district attorney, also to lieutenant commander of the Navy at Minneapolis, Minn. We do not know of any further steps to take and we are appealing to you as our representative in Washington in hopes that you may be able to do something for us.
Another statement by this speaker last night was to the effect that the American women who did not oppose the war and resist the Government in taking of the young men for the purposes of war were no better than the American brood sow, as they willingly raised sons for the purpose of being murdered in the defense of the $4,000,000,000 that J. P. Morgan owned. Now, we do not feel that the Government should ask us to submit not only to the insults to our young men who have the patriotism and courage to lend themselves for the protection of our Government, but also submit to the vulgar insults to our wives, mothers, and sisters.
It is also an unfortunate thing that the only representative of the Federal Government which reaches every small town and hamlet, namely, the postmaster, is here well known to be in sympathy with speakers and principles of this kind. As a matter of fact, the husband of the postmistress here, and who is really the controlling influence in the post-office, is one of the leaders for the distribution of propaganda of this kind. In fact, he has right in the post-office made slurring remarks about the American flag to a patron who came into said post-office wearing an American flag in the lapel of his coat. The speaker last night was brought here by the bunch spreading this seditious propaganda. A bill announcing the meeting, with a large picture of the speaker, was conspicuously posted in the post-office--the post-mistress and her husband both attended the speech and enthusiastically applauded the seditious utterance of the speaker. It is common knowledge in this village as well as the surrounding community that all the employes of the post-office are opposed to the aims and efforts of the Government. I am a member of the executive committee of the chapter of the Red Cross that we have organized. We are going to do our utmost, but it does not seem to us that the Government should permit such obstacles to exist, and to be thrown in the path of those who are endeavoring to do what they can in assisting the Government. Secret meetings are being held by the people who are spreading this propaganda almost nightly. We have almost reached the limit of our endurance and we feel the Federal authorities should make an investigation and take drastic action.
I have been informed that the present postmistress is intending to resign and that the frameup is to have a nephew of her husband appointed in her place. This young man was just naturalized as an American citizen during the month of June last. His registration card would scarcely hold all the reasons he gave for being exempt from military service. He was formerly editor of the Bowman Citizen here, and the files of this newspaper which he edited will indicate his feeling toward the Government and his ideas of patriotism. We believe that our community needs attention from the Federal authorities, and we hope that you may be able to assist us in bring this about.
Will you not kindly let me know whether or not you will be able to be of any assistance to us; and if not, would you direct our efforts into such a channel that they would receive attention?
Very truly, yours,
Since writing this letter I have learned that our postmistress has been entertaining last night's speaker to-day; that they had dinner together at the hotel and visited and hobnobbed together.
Mr. McCUMBER. Mr. President, I think it just to say at this time that as I understand it, neither the postmistress nor the husband is German or German born. It is not a German question at all. They are, as I understand it, simply Socialists, with
anarchistic tendencies, if the information which I have received is correct. The German people of the State of North Dakota, while they very naturally regret that there exists a state of war between their fatherland and this country, are nevertheless patriotic American citizens, and will do their whole duty in this war, and this propaganda is not stirred up by them, nor are they in any way responsible for it.
Mr. McCUMBER. I hope the Postmaster-General will investigate this matter upon the statements as they will appear in the Record.
Now to Remove the Postmistress.
The basis was now laid for a successful advance by Phelan against the Totten-Nonpartisan League element. The press of the country, and of North Dakota especially, had given wide circulation to the charges against Mrs. Totten. It seemed that the next step was to secure Mrs. Totten's removal. The post-office department was slow to act. Mr. Phelan, it is stated, then went to Fargo to secure Mrs. Totten's indictment by the Federal Grand Jury. In this he was unsuccessful. What had she done? Her husband had "torn down the flag." She couldn't be indicted for that!
"She had applauded and spoken to Mrs. O'Hare."
Then indict Kate Richards O'Hare!
So Mr. Phelan made another visit to Fargo, this time with his attorney and three others. Only one of them, the same James mentioned above, had been in the hall where Mrs. O'Hare spoke. Their names are mentioned in the indictment, and so, upon their evidence a "true bill" which is reproduced below, was found.
With Kate Richards O'Hare indicted, and presumably convicted, Mrs. Totten would surely be removed from the Post-office.
Mrs. Kate Richards O'Hare Arrested.
Mrs. O'Hare had read the articles in the newspapers. She went along in the even tenor of her way, repeating the same address in town after town, to audiences of fathers, mothers, wives, and sweethearts of the American soldier boys. At these meetings, as usual, representatives of the various departments of the State and National Government were present. There were no disturbances.
At Devils Lake, North Dakota, where she was billed to deliver the same address, she was arrested by a U. S. deputy marshal, on July 29, 1917. On July 30th she was arraigned before Judge
Amidon at Fargo, on an indictment** charging her with violation of section III of the Espionage act, and was released on $1000 bond to appear at the December term of court at Bismarck, N. D.
Kate O'Hare Tried.
On December 5, 1917, Mrs. O'Hare's trial opened at Bismarck, N. D., before Judge Martin J. Wade of Iowa. Judge Amidon had been replaced by Wade through a writ of prejudice secured by another defendant tried at the same term of court, who pleaded guilty when tried. Mrs. O'Hare heard of this change in judges so late that she was not able to secure a writ of prejudice against Judge Wade, under the provisions of Section 21 of the Judicial Code of the United States.
A verdict of "guilty" being returned, Mrs. O'Hare was sentenced to five years in the Missouri State Penitentiary.
Upon the conviction of Mrs. O'Hare, Mr. Phelan and forty-six persons, employes, dependants, or otherwise adherents of his, sent a petition to the Postmaster-General asking the removal of Lillian B. Totten, Postmistress.
The petition contains the following charge:
"That the said Edward B. Totten, with others was instrumental in procuring Kate Richards O'Hare to deliver a speech in Bowman, in which she uttered highly treasonable sentiments. * * * * and on the day following the same the said Lillian B. Totten and her husband publicly dined and visited with the said Kate Richards O'Hare at a prominent hotel in Bowman."
Mrs. Totten was removed.
Phelan crowned his eleven years of contest with the Tottens with victory.
Phelan Didn't Know.
Kate Richards O'Hare was a stranger to Mr. Phelan. He had not attended her meeting. He says that some one told him what she had said. He first tried to secure the indictment of Mrs. Totten, so it is stated by some, and failing in that secured the indictment against Mrs. O'Hare.
It was the Tottens he was after. Mrs. O'Hare had delivered her speech in 70 towns prior to Bowman, before scores of secret service officers. Not until she arrived in Bowman were the wonderful paragraphs put into her mouth.
The fact that Kate Richards O'Hare was to be torn from her four children was no part of Phelan's program. He didn't know she had any children. She was an incident in his battle with the Tottens. That is all.
What Are the Facts?
The question that presents itself first of all to the individual who wishes to get at the truth regarding the O'Hare case is this: did Mrs. O'Hare make the statements charged in the indictment? In her copy of the speech the statements charged to her do not appear. There are, however, two statements which could be easily misquoted by the inattentive listener or by one who wished to find something that he could misquote.
During the course of her speech she stated relative, to the effect of the war upon European motherhood, that:
"When the governments of Europe and the clergy of Europe, demanded of the women of the warring countries that they give themselves, in marriage or out, in order that the men might "breed before they die"--that was not a crime of maddened passion--it was the crime of cold-blooded, brutal selfishness--and by that crime the women of Europe were reduced to the status of breeding animals on a stock farm."
She also stated the following as her attitude toward enlistment and the sending of troops to France:
"Our enemies tell you that we Socialists are hindering enlistment. This is not true! Please understand me now, and do not misquote what I say, 'If any young man feels that it is his duty to enlist, then with all my heart I say: Go! and God Bless you!' His blood may enrich the soil of France, but that may be for the best."
Now, it is easily seen that these statements bear a resemblance in form to the statements in the indictment but their meaning is far different.
But the question can be legitimately asked as to whether Mrs. O'Hare may not have deviated from her printed speech and made the statement charged. Yes, certainly such a thing could have been possible, but only in case Mrs. O'Hare purposely intended to insult the mothers of America in the hour of their great trial and if she desired intentionally to insult the American boys going to fight for the ideal of "Making the world save for democracy."
Those who are close to Mrs. O'Hare say that such a possibility is ridiculous, that she, the daughter of a soldier, a descendent of a long line of soldiers, with her veneration for motherhood and human life, could not have made such statements.
One must face all the possibilities, however, and attempt to get at the facts. The only way that this could be done was to examine into the connections of the witnesses who appeared against Mrs. O'Hare in order to see whether they may not have been influenced in their testimony. Beyond that one could go to the people who attended the lecture and find out whether they considered the charges true.
The writer spent some weeks in Bowman examining the local conditions, looking up the credibility of the witnesses and interviewing a large number of those who attended the lecture.
The witnesses examined before the Grand Jury were:
J. E. Phelan (who had not attended the meeting).
M. S. Kirchner (who had not attended the meeting).
T. B. Torkelson (who had not attended the meeting).
E. E. Hogoboom (who had not attended the meeting).
J. E. James (who HAD attended the meeting).
When the case came to trial Phelan, Kirchner, Torkelson, and Hogoboom dropped out, and there appeared for the prosecution:
J. E. James (who HAD been in the hall).
A. A. Whittemore (who HAD been in the hall).
Mrs. Olson (who was not in the hall).
Joe Hawks (who was not in the hall).
Ole Hanson (who was not in the hall).
Each of the eight persons mentioned were in some way related to Mr. Phelan's interests. James was Phelan's choice for postmaster. Mrs. Olson's husband works for Phelan. Joe Hawks, a customer of Phelan's. Wittemore [sic] owns a drug store and has the Phelan clique patronage. Torkelson is Phelan's attorney.
From the stenographic record of the trial it appears that all five witnesses for the prosecution were quite sure about the wording of the paragraphs quoted, though they had trouble remembering any other of her statements or misquoted them. Three of the witnesses for the prosecution claimed to have heard the lecture from the outside of the Cozy Theatre.
For the defense Mrs. O'Hare produced twelve witnesses, only eight of whom were allowed to testify, however. Her witnesses were absolute strangers to her. There was no Socialist organization in Bowman. Her witnesses were Republicans and Democrats; every one of the men among them had voted for President Wilson. These twelve were all independent farmers, or professional men and women. Among them were Judge Totten and Postmistress Totten. They all testified directly opposite the Phelan witnesses. They were sure Mrs. O'Hare had not used the expressions quoted or shown the intent charged.
It was thought best to question the people who had been at the meeting and who had not been at the trial whether they thought the charges true or false.
The writer called on and questioned thirty-seven such individuals. Every one was positive that Mrs. O'Hare had not made the statements charged. In order to make sure that there was no partisan feeling in the replies, the political affiliations were ascertained in each case. Of these thirty-seven, twenty-five were Re-
publicans, five were Democrats and seven Socialists in National politics. In State politics, seven were Socialists, two Democrats, five called themselves real Republicans and the remainder, or twenty-three, were Nonpartisans.
After questioning these thirty-seven and finding that they were unanimous in denying the charges against Mrs. O'Hare, a request was made of the Phelan element in the town that they furnish a list of individuals besides the two witnesses that they had produced at the trial who had been at the lecture and would substantiate the charges. They failed to produce a single additional name.
Feeling in Bowman in Favor of Mrs. O'Hare.
The feeling of the people in Bowman who attended the speech about the case was well shown by one American of Scotch-Irish ancestry who had two sons and five nephews in the service. A Republican in politics and a farmer by profession, he had been an attentive listener at the lecture. He denounced the prosecution in unmeasured terms. In reply to my question as to whether the charges against Mrs. O'Hare were true he shouted, "True! Good God man! Do you suppose that if Mrs. O'Hare had made those insulting remarks about our wives and sons we would have sat there and stood it? What in hell do you think we are made of?"
While the reply was rather inelegant in form it was eloquent in expression of the feelings of almost the whole audience who not only heard but applauded the speech of Mrs. O'Hare. It is hardly probable that the men would have applauded if Mrs. O'Hare had insulted their wives and sons, or that the mothers of soldiers would have applauded a woman who had insulted them and their boys.
In view of this evidence it seems almost incredible that Mrs. O'Hare was convicted. Yet such is a fact. How can such a thing be possible? You may well ask the question.
Intense Partisanship in North Dakota.
It must be remembered that at the time of the O'Hare trial North Dakota was in the throes of one of the bitterest political battles waged in the history of America, a battle between the farmers organized in the Nonpartisan League, and the old-time political managers of the Republican and Democratic parties. The reform movement sought legislation to protect the interests of the farmers as shippers and borrowers. Against this movement was arrayed the conservative element, the milling interests, the rail-
roads, and big business in general. The leaders and organizers of the new movement were branded "disloyal" "Socialistic" "Pro-German." Public opinion was strongly divided. Mrs. O'Hare being an open and professed Socialist, and Mr. Phelan, being widely known in the State, president of the North Dakota Banker's Association, it seemed almost impossible to secure a jury without bias one way or the other.
Judge Amidon, the Federal Judge of the District is a man of broad culture and liberal mind, and commands the respect and esteem of the people generally for his judicial fairness. Ordinarily he would have presided at the December term of court. It happened that the Editor of "Jim Jam Jems" was standing trial at the same term of court, on a federal charge. This person securing a writ of prejudice against Judge Amidon, the latter could not sit at the December term. In his place Judge Wade, of the Southern District of Iowa was secured.
Judge Wade is a frankly outspoken antagonist of Socialism and Socialists. His public utterances on the question are numerous. True, they all show a crass misunderstanding of the Socialist proposals. Time and time again he has attacked the Socialists publicly for what he conceives to be their beliefs and program. He has strong feeling about Socialism and Socialists. He is honest in this, but it is unfortunate that he should have been called upon to try the case of Kate Richards O'Hare. This attitude is not universal among the Federal judiciary.
Section 21 of the Judicial Code provides that a defendant can secure the removal of a trial judge by simply averring prejudice. The petition must be filed with the clerk of the court ten days before court opens. This measure is provided by the law for the protection of the accused.
Kate O'Hare Lost Valuable Right.
Mrs. O'Hare was not able to avail herself of this right. The announcement of the name of the Judge was made too late for her to have the proper inquires made and the writ prepared.
In ordinary cases, the political bias of the jurors has little weight. In the O'Hare case the jury panel was chosen in the ordinary way. In a state made up 80 per cent of farmers, the jury was made up of eighty per cent of business men, not one of whom was a member of the Nonpartisan League which is so numerous in the state as to have recently elected the Governor and 116 members of the State Legislature. In fact, the jurors were practically all opponents of the Nonpartisan League.
Prior to the trial the newspapers of the State had spread the report that the Nonpartisan League had been instrumental in bringing Mrs. O'Hare into the State. Consequently the business men classed her as one of the organization they were fighting so bitterly.
There were several bankers on the jury. They could not fail to know that the instigator of the prosecution was James E. Phelan, the president of the State Banker's Association. These men acted according to their lights. None of the facts as stated in this report were permitted to go before them.
Mrs. O'Hare was not permitted to present her entire speech to the court and jury. By what seems to the writer, a layman, to be curious oversight, the defense failed to introduce the speech of Senator McCumber, printed in the Congressional Record, as evidence. Nor did the defense subpoena Mr. Phelan and thus connect him with the case.
In the court record is printed in full all of the testimony, the charge to the jury, the speech of Mrs. O'Hare and the Judge's reply upon imposing sentence. These addresses are among the most remarkable ever delivered by a defendant and a judge. The scope of my inquiry does not cover the trial. It was a study of the facts leading up to the indictment, trial and conviction of Kate Richards O'Hare. These facts are not part of any public record. They are common knowledge in Bowman and Southwestern North Dakota. They are essential if one is to form a true judgment regarding the essential justice of sending to the penitentiary for five years one of the most remarkable and noted women of America, and of the world.
[These annotations are in the original document]
*This address is obtainable in printed form. See back cover page of this booklet.
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**In the District Court of the United State of America, District of North Dakota, United States District Court, Adjourned May, 1917, Term
The Grand Jurors of the United States of America, chosen, selected and sworn to inquire in and for the State and District of North Dakota, upon their oaths present:
That at the city of Bowman, in the State and District of North Dakota, and within the jurisdiction of this court, on or about the seventeenth day of July, in the year of our Lord one thousand nine hundred and seventeen, one Kate Richards O'Hare, whose true name is to the grand jurors unknown, did commit the crime of willfully obstructing the enlistment service of the United States to the injury of the services of the United States, committed as follows, to-wit:
That at said time and place the said Kate Richards O'Hare, then and there being, did willfully, unlawfully and feloniously at a public meeting held in a hall in the city of Bowman, in said county of Bowman and State of North Dakota, in a public speech made by her in the presence of one hundred and seventy-five people, state in substance that any person who enlisted in the army of the United States for service in France would be used for fertilizer and that is all that he was good for, and that the women of the United States were nothing more or less than brood sows to raise children to get into the army and be made into fertilizer. Such statement so made was made with the intention of willfully obstructing the enlistment service of the United States, to the injury of the United States, the same being then and there a time of war between the Imperial German Government and the United States of America.
This contrary to the form of the statute in such case and provided, and against the peace and dignity of the United States of America.
And the grand jurors aforesaid, upon their oaths aforesaid, do further present:
(The second count is word for word above, except "enlistment" service is changed to "recruiting" service.)
This contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.
Witnesses examined before the grand jury M. D. Kirchner, J. E. James, T. E. Phelan, T. B. Torkelson, E. E. Hogoboom
MELVIN A. HILDRETH.
United States Attorney.
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