by Jill Lepore
3. Frye v. United States, Brief for Appellee, prepared by Peyton Gordon, U.S. Attorney, and J. H. Bilbrey, Assistant U.S. Attorney, filed November 2, 1923, in National Archives, RG 276, Briefs #3968, box 380, 14E2A/02/05/04, pp. 4–5.
4. Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 34 A.L.R. 145.
5. “The Frye test has been accepted as the standard in practically all of the courts of this country which have considered the question of the admissibility of new scientific evidence,” the Kansas Supreme Court observed in 1979. Quoted in Starrs, “Still-Life,” 685.
6. On the leanness of the ruling, see O’Donnell, “Courting Science,” 247–52.
7. “Arrest Inventor of Lie Detector,” Boston Daily Globe, March 7, 1923.
8. “It is alleged that the defendant owes $2125. William M. Marston has been sued for $5000. In an action of contract by Edward Fischer, of Brookline. Papers have been filed by Attorney Edward G. Fischer, 60 Oliver Street, Boston. It is alleged that the defendant owes $3401.31.” Cambridge Chronicle, January 14, 1922. “William M. Marston has been attached for $500 in an action of contract by Edward G. Fischer, of Brookline. Papers have been filed by Attorney F. L. Fischer, 60 Oliver Street, Boston.” Cambridge Chronicle, May 6, 1922.
9. United States v. William M. Marston, December 1922, an indictment. United States v. William M. Marston, report of W. J. Keville, U.S. Marshal, by James M. Cunningham, Deputy; and warrant for the arrest of William M. Marston, both dated February 17, 1923, National Archives, Boston.
10. “Marston, Lie Meter Inventor, Arrested,” Washington Post, March 6, 1923, and “Arrest Inventor of Lie Detector,” Boston Daily Globe, March 7, 1923.
11. United States v. William M. Marston, indictment for using the mails in a scheme to defraud, December 1, 1922, National Archives, Boston.
12. United States v. William M. Marston, indictment for aiding and abetting in the concealment of assets from the trustee in bankruptcy, December 1, 1922, National Archives, Boston. The claimants in the case included a furnace tender who had worked for the Tait-Marston Engineering Company and said Marston owed him $100. Marston, it seemed, left a trail of debts wherever he went. Dateline Washington, DC, March 6:
Dr. William Moulton Marston Jr., Professor of legal psychology at the American university and inventor of the sphygmomanometer or “lie detector,” has made $3,000 bond and will be given a hearing March 16 on a charge he “lied by mail.” Dr. Marston was arrested on a warrant charging use of the mail to defraud and was taken before United States Commissioner McDonald, who fixed the date of the hearing. He was indicted last November in Boston on complaint of a number of creditors who charged that as treasurer of the United Dress Goods, Inc. he misrepresented the financial condition of his firm and thus obtained considerable bills from them. Prominent among the complainants are A.D. Juliard & Co. and C. Babsen & Co. of New York. Another is his ex-furnace tender, of Boston, whom it is alleged he owes more than $100.
From “Will Give Hearing to Alleged Mail Defrauder,” Bridgeport Telegram, March 7, 1923.
13. “William M. Marston, inventor of the ‘lie detector,’ professor of psychology in the American University at Washington, walked into the office of the United States Marshal in the Federal Building yesterday afternoon and was ushered into Judge Morton’s chambers, where he was arraigned.” From “Marston Held in $2600 for Trial,” Boston Daily Globe, March 17, 1923.
14. United States v. William M. Marston, Recognizance of Defendant, March 16, 1923, National Archives, Boston.
15. “Hold ‘Lie-Finder’ Inventor,” Washington Post, March 17, 1923; “ ‘Lie Detector’ Inventor Arraigned,” New York Times, March 17, 1923; and “Marston Held in $2600 for Trial,” Boston Globe, March 17, 1923.
16. Hale and Dorr, now WilmerHale, is still at 60 State Street, Boston.
17. American University: Announcement for 1922–1923, Graduate School of Arts and Sciences (Washington, DC: American University, 1922), 11–15.
18. JHW to WMM, November 20, 1923, Wigmore Papers, Northwestern University Archives.
19. Memorandum of Scientific History and Authority of Systolic Blood Pressure Test for Deception, Frye v. United States, Briefs, #3968, National Archives RG 276, box 380, 14E2A/02/05/04. The science brief, which had been misfiled, was discovered by O’Donnell, who came across it while searching through other Frye bins at the National Archives (“Courting Science,” 264 n731). O’Donnell’s discovery of the science brief is invaluable. O’Donnell argues that the science brief, which places Marston’s work as just one piece of a larger endeavor—“the brief refocused the debate from the credentials of one scientist, Dr. Marston, to the work of many scientists” (p. 274)—is “telling about the extent to which the new science of experimental psychology was able to conceive of itself as a communal activity” (p. 265). But, having discovered that Marston was arrested for fraud, I believe that the motivation for the brief was to distance the case from Marston, whose widely publicized arrest and arraignment had devastated the prospects for a successful appeal.
20. WMM to JHW, December 31, 1923, Wigmore Papers.
21. Richard W. Hale to the President of American University, November 1, 1924, WMM, Faculty/Staff Personnel Records, American University Archives, American University Library, Washington, DC. By the time Hale wrote this letter, Marston had long since been fired. Hale knew there was no chance Marston would be reappointed; he wrote this letter, he said, simply to set the record straight, requesting that it be placed in Marston’s dossier, which it was.
22. The nolle prosequi on the two bills of indictment is dated January 4, 1924.
23. JHW to WMM, January 9 and January 18, 1924, Wigmore Papers. Marston revisited the experiments he had conducted at American University in 1922 in an article he published in Esquire in 1937; it was excerpted in Legal Chatter. “The startling fact that a jury is never right has been proved beyond doubt by my work in the psycho-legal laboratory. No jury can be right—or anywhere near it—in its total reconstruction of facts.” WMM, “Is the Jury Ever Right?” Legal Chatter 1 (1937–38): 30–35; quotation is from p. 30. Wigmore’s Principles of Judicial Proof was, for the most part, forgotten. Apart from Wigmore’s own classes at Northwestern and Marston’s course in Legal Psychology at American University in 1922, only one other course in the country, offered at a law school in Idaho, seems ever to have used Wigmore’s Principles of Judicial Proof as its textbook. Outside of Northwestern University Law School, where Wigmore himself assigned it, Twining could find only one school, in Idaho, that ever adopted it (Twining, Theories of Evidence, 165). EHM, “Tiddly Bits.”
24. For Lester Wood and Richard V. Mattingly’s admission to the bar, see Journal of the Supreme Court of the United States 1923 (June 1924), p. 283. Lester Wood earned a doctorate in civil law from American University’s Graduate School of Law and Diplomacy in 1923, having written a thesis about labor law. The American University Ninth Convocation (Washington, DC: American University, 1923), 4. Richard Mattingly dropped out. Three years after the appeal ruling, Mattingly left the law altogether. He went to medical school and spent the rest of his life working as a doctor. According to his son, interviewed by O’Donnell in 2003, Mattingly always said he withdrew from the legal profession, in part, because of his regret over the fate of James A. Frye. O’Donnell, “Courting Science,” 18 n53.
25. In an unpublished memoir, EHM left out everything that happened between the years 1922 and 1927, never once mentioning Frye, Marston’s arrest, or the scandal that ended his academic career. EHM, “Tiddly Bits”; there is a gap between 1922, when WMM began teaching at American University and EHM began working at the Haskins Information Service, and 1927, when, living in New York, she became pregnant.
26. WW comic strip, March 27–31, 1945.
10. HERLAND
1. My account of Olive Byrne’s early years is taken chiefly from an unpublished memoir and a series of unpublished family histories she wrote in the 1970s and 1980s: OBR, “Mary Olive Byrne,
” “Ethel Higgins Byrne, 1883–1955,” “310 East Tioga Avenue, Corning, New York,” “John Frederick Byrne, 1880–1913,” “Michael Hennessey Higgins, 1844–1929,” “John Florence Byrne, 1851–1914 (approximately),” “Margaret Donovan Byrne (Gram), 1853–1914,” and “John Lucas,” all in the possession of BHRM.
2. OBR, “Mary Olive Byrne,” 1–2. Ethel Byrne told OBR that it was Jack Byrne who threw her out, into the snow. But according to MSML, it was Ethel Byrne, not Jack Byrne, who tossed baby Olive into the snowbank (a story that must have come from MS, whose relationship with her sister had become strained). MSML, interview with the author, July 9, 2013.
3. OBR, “Mary Olive Byrne,” 2.
4. MSML, interview by Jacqueline Van Voris, MS Papers, Smith College, 1977, box 19, folder 7, pp. 53–54.
5. “I do not like secret marriages,” MS wrote. “They are so liable to cause comment.” MS to Mary B. Higgins, [May?] 12, 1902, in MS, The Selected Papers of Margaret Sanger, ed. Esther Katz (Urbana: University of Illinois Press, 2003–10), 1:31. The published papers are in three volumes, hereinafter referred to as Selected Papers of MS. The bulk of Sanger’s papers are available in three different microfilm collections.
6. MS said, “We have always been very near to each other. She took care of me when my children were born and I took care of her. She is younger than I. We have never been separated except when she was first married. After her husband died she came home to me to live, and we have been together ever since.” Part of Sanger’s account here is untrue. Ethel Byrne left her husband in 1906, at which point she lived, on and off, with her sister; her husband didn’t die until 1913. “Mrs. Byrne Gets 30-Day Jail Term,” New York Tribune, January 23, 1917; “Mrs. Byrne Too Weak to Move,” New York Tribune, January 27, 1917. The definitive biography of MS remains Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America (1992; repr., New York: Simon and Schuster, 2007). But see also David Kennedy, Birth Control in America: The Career of Margaret Sanger (New Haven, CT: Yale University Press, 1970), and Jean H. Baker, Margaret Sanger: A Life of Passion (New York: Hill and Wang, 2011).
7. OBR, “Ethel Higgins Byrne,” 3–5, and OBR, “Mary Olive Byrne,” 1.
8. Chesler, Woman of Valor, 62, and MS to Lawrence Lader, October 10, 1953, Selected Papers of MS, 3:334–35 and 335 n11. No evidence corroborates Ethel Byrne’s claim, made later in life, that she tried to regain custody of the children in 1913.
9. OBR, “Ethel Higgins Byrne,” 5–6.
10. OBR, “Mary Olive Byrne,” 2–3, 6, and OBR, “Ethel Higgins Byrne,” 4.
11. On Parker, see Selected Papers of MS, 1:104 n18. The apartment on West Fourteenth Street was Sanger’s. OBR gives it as her mother and Parker’s address in “Ethel Higgins Byrne,” 8. She says MS lived there until she married J. Noah Slee, which was in September 1922. And when Sanger and Byrne faced trial in 1917, Byrne was described as living with Sanger at that address. Katz says that Byrne lived with Parker “from the 1910s through the early 1920s” (Selected Papers of MS, 1:104 n18). On the dissolution of Sanger’s first marriage, see Chesler, Woman of Valor, 90–97.
12. On “sexual modernism,” see Stansell, American Moderns, chapter 7. On sex radicalism and its relationship to both free love and feminism, see Joanne E. Passet, Sex Radicals and the Quest for Women’s Equality (Urbana: University of Illinois Press, 2003).
13. Sanger considered some of Heterodoxy’s priorities, like a woman’s right to keep her name after marriage, frivolous. Judith Schwarz, Radical Feminists of Heterodoxy: Greenwich Village 1912–1940 (Lebanon, NH: New Victoria, 1982), 14, 65. Stansell, American Moderns, 80–92.
14. Crystal Eastman (1920), as quoted in Evans, Born for Liberty, 168.
15. Lou Rogers, “Lightning Speed Through Life,” originally published in the Nation in 1926 and reprinted in Elaine Showalter, ed., These Modern Women: Autobiographical Essays from the Twenties (New York: Feminist Press, 1978); the quotation is from p. 103. On Roger’s anti-war cartoons, see Rachel Lynn Schreiber, “Constructive Images: Gender in the Political Cartoons of the Masses (1911–1917),” PhD diss., Johns Hopkins University, 2008, pp. 221–56. And on women as comic strip artists in this period, see Trina Robbins and Catherine Yronwode, Women and the Comics ([S.I.]: Eclipse, 1985), 7–18.
16. “Lou Rogers, Cartoonist,” Woman’s Journal and Suffrage News 44 (August 1913): 2. She also held meetings on street corners where she drew cartoons and gave lectures. See “Suffrage Cartoons for Street Crowds,” New York Times, July 19, 1915. “A Woman Destined to Do Big Things in an Entirely New Field,” Cartoons Magazine 3 (1913): 76–77; the quotation is from p. 77. Display ad, New York Evening Post, February 22, 1914; “Prize for Suffrage Films,” New York Times, July 2, 1914; and “Cartoon Service by Lou Rogers,” Woman’s Journal and Suffrage News, November 14, 1914, p. 302: “The cartoons furnished by Miss Rogers may be used in newspaper articles, and on flyers and campaign literature. They make excellent suffrage arguments and are eagerly sought by those who realize the advantage of illustrated propaganda.” Alice Sheppard, Cartooning for Suffrage (Albuquerque: University of New Mexico Press, 1994), 52, 212; for more on Rogers’s cartoons featuring chains, see pp. 32, 34, and 192.
17. Max Eastman, Child of the Amazons and Other Poems (New York: Mitchell Kennerley, 1913), 23. Eastman, a prominent advocate of suffrage, was invited to speak at Harvard in 1911: “Woman Suffrage Movement,” Harvard Crimson, November 2, 1911.
18. Inez Haynes Gillmore, Angel Island (1914; repr., New York: New American Library, 1988), with an introduction by Ursula K. Le Guin; quotations are from pp. 61 and 308.
19. Charlotte Perkins Gilman, Herland (1915), in Charlotte Perkins Gilman’s Utopian Novels, edited and with an introduction by Minna Doskow (Madison, NJ: Fairleigh Dickinson University Press, 1999), 205.
20. In the winter of 1914, MS went to see Charlotte Perkins Gilman speak in New York. Sanger was impressed. See MS’s diary entry for December 17, 1914, in Selected Papers of MS, 1:106; and for her seeing Gilman speak in New York earlier that year, see p. 107.
11. THE WOMAN REBEL
1. The full series of Sanger’s essays from the New York Call can be found in MS Papers, Collected Document Series, microfilm edition, C16: 24–62; the suppressed article is C16: 59–62. For an excerpt, see MS, “What Every Girl Should Know: Sexual Impulses—Part II,” in Selected Papers of MS, 1: 41–46.
2. Chesler, Woman of Valor, 97–98.
3. MS, “Why the Woman Rebel?” Woman Rebel, March 1914, in Selected Papers of MS, 1:71.
4. Selected Papers of MS, 1:69–74, 41; Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (Urbana: University of Illinois Press, 2002), 143; James Reed, From Private Vice to Public Virtue: The Birth Control Movement and American Society Since 1830 (New York: Basic Books, 1978), 70, 73; and MS, An Autobiography (New York: Norton, 1938), 89.
5. On Reed’s involvement, see Daniel W. Lehman, John Reed and the Writing of Revolution (Athens: Ohio University Press, 2002), 19, 61; and see John Reed Papers, Houghton Library, Harvard University, MS Am 1091: 1156. On Ethel Byrne taking care of Sanger’s children: family histories suggest that Ethel Byrne, rather than William Sanger, cared for the Sangers’ three children when MS left the country. Of Olive Byrne and Stuart and Grant Sanger (MS’s sons), Stuart’s daughter Nancy said, “They were all the same age and Ethel raised them essentially when Mimi was going off.” Nancy Sanger, interview by Jacqueline Van Voris, MS Papers, Smith College, 1977, p. 20.
6. Havelock Ellis, “The Erotic Rights of Women” and “The Objects of Marriage”: Two Essays (London: Battley Brothers, 1918). And see Baker, Margaret Sanger, 92–97.
7. Selected Papers of MS, 1:109. On MS’s relationship with Ellis, see Chesler, Woman of Valor, 111–21.
8. MS, Family Limitation (New York: Review, 1914), 1.
9. Quoted in Chesler, Woman of Valor, 127.
10. OBR, “Ethel Higgins Byrne,” 26–27.
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br /> 11. Quoted in Chesler, Woman of Valor, 139.
12. “Noted Men to Aid Her,” Washington Post, January 19, 1916; Chesler, Woman of Valor, 140.
13. MS, Autobiography, 216–17, 219; and see Birth Control Review, October 1918.
14. “Birth Controllers Up Early for Trial,” New York Times, January 5, 1917, and “Mrs. Sanger’s Aid Is Found Guilty,” New York Times, January 9, 1917; Chesler, Woman of Valor, 152.
15. The best account is Lunardini, From Equal Suffrage to Equal Rights.
16. “Mrs. Byrne Gets 30-Day Jail Term,” New York Tribune, January 23, 1917.
17. Cott, Grounding of Modern Feminism, 25–27.
18. On the extent and intensity of the coverage, see Chesler, Woman of Valor, 153–54.
19. Ethel Byrne quoted in MS, Autobiography, 227–29.
20. “Will ‘Die for the Cause,’ ” Boston Daily Globe, January 24, 1917; “Mrs. Byrne, Sent Back to Prison, Starves On,” New York Tribune, January 24, 1917; “Mrs. Byrne Fasts in Workhouse Cell,” New York Times, January 25, 1917; and “Mrs. Byrne Weaker, Still Fasts in Cell,” New York Times, January 26, 1917.