The Great Depression (55 page)

Kaufman hired a lawyer, F.W. Wegenast, to represent Miss Palmer. On the first day of the trial, the tiny Eastview courtroom, which held fewer than fifty persons, was jammed with Catholic
women. The following day, apparently under orders from their priest, they did not turn up.

The case was heard by Magistrate Lester H. Clayton rather than a jury. It lasted until December, produced 750,000 words of testimony and 400,000 more of argument, and heard from more than eighty witnesses.

The Crown opened by calling twenty-one Eastview housewives. Most were poor, on relief, and mothers of large families; all but one was a Catholic. These were the women whom Dorothea Palmer had visited. They turned out to be as effective for the defence as for the Crown, for their testimony made it clear that the accused hadn’t tried to sell them anything or give them anything directly. She had simply told them what most didn’t know: where to get birth control information.

The Crown prosecutor, Raoul Mercier, asked each witness in turn if she thought she’d done anything morally wrong in accepting the box that later arrived in the mail. Most said no. He asked each if she had changed her mind since that time. Again: no.

Mercier asked one witness, who had explained that Miss Palmer had offered information concerning contraceptives: “What did you tell her?” The answer didn’t help his case. “I told her she came too late,” the witness replied.

At that, the Crown dropped one charge against the defendant – that she had tried to sell contraceptives. Obviously, she hadn’t. The magistrate dismissed a second charge: the devices she carried with her were clearly for demonstration, not distribution. That left a third charge to be tried – that she had unlawfully advertised, by means of a pamphlet, materials intended as a means of preventing conception.

There was an escape clause in the law that read that “no one shall be convicted … if he proves that the public good was served by the acts.” The onus was on the defence to prove public good, and it produced a powerful parade of witnesses to bolster that argument. These ranged all the way from an officer of the Salvation Army to a rabbi.

Anna Weber, the first defence witness and director of Kaufman’s bureau, was asked why the spread of birth control knowledge couldn’t be left to the doctors. She replied forthrightly that doctors knew little about the subject, that women patients might owe them money and were ashamed to go to them or were often
too embarrassed to be examined by a man, and that mothers couldn’t afford the carfare to get to the doctor’s office or to pay someone to look after their children. “They will open their hearts to another woman, however,” Miss Weber said. “That is why we send nurses around to visit them.”

The doctors called as expert witnesses by the Crown proved the point when the defence, in cross-examination, forced the admission from the physicians that they knew very little about contraception. The subject wasn’t even taught in medical school.

Two surprise witnesses for the defence caused a mild sensation and some levity. They arrived with twenty-three birth control devices, which they spread out on an exhibit table already crowded with Kaufman’s packages. The pair had bought them without any trouble at a local drugstore simply by asking for “something to keep my girl from getting pregnant.”

Some of the Protestant clergy who testified for Miss Palmer gave a rather lukewarm defence of birth control. Rev. T. Summerhayes, secretary to the Toronto Anglican Social Service Council, was as guarded as his own church, conceding only that birth control might be justified if a woman’s health was in danger or the family was below the poverty line – again a foreshadowing of some arguments used in the abortion controversy. The Anglicans, indeed, seemed to be on both sides of the argument. The Crown’s last rebuttal witness, Canon Arthur Whalley, a Church of England minister from Ottawa, said that if his own church ever favoured birth control, he would resign.

Rev. John Coburn of the United Church was forthright on the other side when he said that “every child had the right to come into the world wanted.” Morris Zeidman of the Scott Mission in Toronto chided the Anglicans for their caution, declaring that “if they had to deal with the problem I have, on the ground, they would take a more practical view.” The star witness for the defence, however, was Rev. Claris Edwin Silcox, general secretary of the Christian Social Council, editor of
Social Welfare
magazine, and a renowned expert on sexuality. Silcox was on the stand for thirteen hours, his testimony stretching over three days. So voluminous was the list of authorities from which he quoted at length that a weary magistrate told him to stop giving references; he would take his word for the sources, he said, in the interests of saving time.

Silcox declared that “the only alternative to birth control was the acceptance of communism or socialism.” Like Kaufman he believed that the state couldn’t afford the burden of so many poor people with such large families. He also thought that a change in the law would ease tensions between French- and English-speaking Canadians because of the widely held belief that the French were trying to outbreed the English. In all, Silcox listed fifteen gains for society if birth control were made legal. The most important, he believed, would be to reduce the incidence of marital breakup.

It was apparent from the testimony that the mainstream Protestant churches, especially the ones that followed the Social Gospel, had been changing their traditional attitude toward the sex act. They now agreed that in addition to its role in procreation, it could be seen as an expression of marital love. On the other hand, there was the Crown’s suggestion that contraception threatened the traditional authority of the husband. What would happen, Mercier asked each witness, if there was a disagreement between husband and wife on whether to use contraceptives or have another child? Some witnesses were uneasy with the question. Canada was very much a male-oriented nation. In spite of Dorothea Palmer’s contention that a woman should control her own body, the trial did not take a feminist tack.

In his summing up for the defence, Wegenast introduced a touchy subject: the French-English, Catholic-Protestant dichotomy. The charge had been laid, he insisted, because of Roman Catholic pressure. Eastview wasn’t different from any other Canadian community; he had been able to show that contraceptives were as easily obtainable there as anywhere else. “If so, where is the line to be drawn – geographically or between family and family? My submission is the line, if any, is at the Ottawa river.”

The Crown’s argument dwelt on the same schism. Palmer had been arrested, Mercier said, “because she knew or ought to have known that these people in Eastview stood in such a special relationship to the Bishop of Rome that the knowledge of the use of contraceptives ought to be kept from them.”

The trial ended on December 11. The magistrate did not issue his verdict until the following March, and it was for the defence. He pointed out that a quarter of the population of four thousand in Eastview was on relief and that the province had paid
$125,000 of the total annual bill of $130,000. “An examination of birth statistics reveals that the poorer classes are generally breeding large families. Several of the witnesses in this case had 9 or 10 children and were 30–35 years old, husbands on relief or on small salaries. What chance had these children to be properly fed, clothed and educated? They are a burden to the taxpayer.… They glut the competitive labour market.” Although this was on a par with the contention of the mayor of Fort Erie that relief recipients ought to be sterilized, that argument – a Depression argument – won the case.

The Depression, then, wrought a change in social attitudes. In fact, it is problematical whether, in better times, Dorothea Palmer would have been acquitted of the crime with which she was charged. She herself did not benefit from the trial; quite the opposite: she was harassed by obscene phone calls and mail and shunned by friends and relatives. Female passersby slapped her face, and the husband of one of her clients tried to rape her to show “what it’s like without birth control.” Undaunted, the young woman replied with a knee to the groin. She did not stay in Kaufman’s employ but went back to the obscurity she craved, operating a small bookstore in Eastview.

As the trial moved towards its climax, an equally sensational affair was making headlines – one that also drew the issue of birth control into sharp focus. The Millar Stork Derby ended on October 31.

Charlie Millar, an eccentric, self-made millionaire who hated pomposity, had died ten years before, leaving an equally eccentric will designed to prove his oft-stated contention that every man had his price. He left racetrack stock to ministers who railed against gambling, brewery shares to temperance advocates, and a handsome home in Jamaica to three men who hated each other.

But it was the final clause in the will that made his name a legend. All residue left after earlier bequests was to go to “the mother who since my death has given birth in Toronto to the greatest number of children under the Vital Statistics Act.”

The will was so carefully drawn that it survived ten years of contention in the courts and an attempt by the Ontario government to break it on the grounds that it was “against public policy.” By mid-October, half a dozen women had come forward to qualify for the Stork Derby prize. One was a young redhead
named Mae Clark, who, with ten children, seemed to be in the lead. But Mrs. Clark offended the sensibilities of the day; five of her children had been fathered by a man other than her husband. Millar’s second cousins tried to break the will on the ground that the deceased was encouraging illegitimacy from the grave. The court ruled that he hadn’t intended to include bastards in the Stork Derby, and so the race continued – but without Mae.

In the end, four Toronto mothers, each of whom had produced nine children, were judged winners and awarded $165,000 each, a sum equal to about half a million in 1990 figures. In order to avoid a long and costly court challenge, the winners voted to give $12,500 apiece to Mae Clark and to a Mrs. Martin Kenny, who had also borne ten children, some of them stillborn and others unregistered. The winners were all in poverty-stricken circumstances – one married to a clerk, another to a city employee, the third to a fireman, and the last to a jobless carpenter. All kept their heads, paid their debts, and spent their winnings wisely.

But what was Millar’s purpose in drafting such a strange and, to many, unsavoury will? Col. John Bruce, one of his associates, who helped draw up the document, had the most plausible explanation. “Millar believed that a good deal of human misery and poverty resulted from uncontrolled childbearing, which in turn he blamed on the ban against birth control information.… [His] hope was that by turning the spotlight on unbridled breeding and making us a laughing stock before the world, he could shame the government into legalizing birth control.”

Certainly, the combination of the Eastview trial and the Stork Derby (which Mitch Hepburn called “disgusting and revolting”) helped change the public attitude toward contraception. Birth control devices became more easily available; the subject began to be discussed more openly. And though it would be more than two decades before the law itself was changed, the public would make up its mind long before: that nobody should be burdened, financially or otherwise, with unwanted children.

Like so many of his fellow Canadians, the Prime Minister of Canada was an isolationist. It would have taken a bolder, indeed
a reckless, politician to have tried to prepare publicly for war. The appalling casualties of 1914–18, and the wave of anti-war literature that followed, had convinced both Canadians and Americans that they should stay out of European entanglements. “It is becoming apparent to all that Europe is a maelstrom of strife,” King wrote in his diary in March after Hitler sent his troops into the demilitarized Rhineland, “and that we are being drawn into a situation that is none of our creation by our membership in the League of Nations.” There was, of course, another reason for avoiding foreign entanglements: French Canada’s attitude. One war had almost split the country; the next might finish it.

Hitler’s moves in Europe did not trouble the Prime Minister. He thought, optimistically and also naively, that “Germany having breathing space anew, may help bring about a situation that will break down other barriers.” Later that summer he mused about setting down “in writing as Hitler has in ‘Mein Kampf’ – a constructive policy for ‘protecting our peace.’ ” Hitler’s anti-Semitism caused some concern, but not much. On August 9 King wrote that the news “seemed to centre around European conditions, the hatred of the Jews. The association of the Jews with Russian Sovietism: the association of Roosevelt with Jewish influence, etc. etc. My own view is that there are good as well as bad Jews and it is wrong to indict a nation or a race.…”

As long, one might be tempted to add, as one didn’t have to have them as neighbours. King made no secret in his diaries of his anti-Semitism. Once, while taking a stroll down Wilbrod Street (those were the days when a Canadian prime minister could walk about the city unaccompanied by either press or security guards), he had come upon a little old man struggling along the icy sidewalk by himself. King was afraid the man would fall on the slippery pavement and offered him his cane, but the old man refused. The two strolled along together, chatting, and King, out of curiosity, asked him about himself. He was seventy-eight, he said; he lived in the Sandy Hill district, had a furniture and clothing business on Rideau Street, and his name was Cohen. He told King that he had three sons and a daughter and had divided all his possessions among them.

King walked him to the steps of his house and, as he shook hands with him, told him who he was. Mr. Cohen smiled “in a
most benevolent and surprised sort of way,” removed his glasses, took a good look, shook hands again, and went up the stairs.

King was charmed by the little playlet in which he had been the leading actor. Quite obviously the old man had come from Russia as a penniless immigrant, made his mark, saved his money, amassed a fortune, acquired a large property, left his children established, and now was “quite satisfied to leave the world possessing nothing, having, meanwhile, gained more than he could have dreamt of.” A real Canadian success story!