Warden Zinkhan's answers after that came even more haltingly. He seemed inordinately fearful of trapping himself by his own words.

"The testimony has brought out the fact," the judge remarked at this point, "that two of these ladies were old and one of them is a delicate lady. Her appearance would indicate that she is not strong. Under this rule, if one of these ladies had been eighty years old and unable to walk she would have gone along with the herd and nobody would have dared to say `ought this to be done?' Would the Commissioners in a case of that sort, if they gave consideration to it, think of sending such an individual there? Was not that what the law expected them to do, and not take them off in droves and inspect them at the Union Station and shoot them on down? Yet that is about what was done in this case."

In summing up this phase of the case in an eloquent appeal, Mr. Malone said:

"Can the Commissioners, with caprice and no order and no record except that orally given five or six years ago, and one which this warden now says was given `oral and explicit,' transfer defendants placed in a particular institution, and under a particular kind of punishment arbitrarily to another institution, and add to their punishment?

"Even if we admit that the Commissioners had power, did Congress ever contemplate that any District Commissioners would dare to exercise power affecting the life and health of defendants in this fashion? Did Congress ever contemplate that, by mere whim, these things could be done? I am sure it did not, and even on the admission of the government that they had the power, they have exercised this power in such a scandalous fashion that it is worthy of the notice of the court and worthy of the remedy which we seek-the removal of the suffrage prisoners from the Occoquan workhouse."

After a brief recess, Judge Waddill rendered this decision: "The locking up of thirty human beings is an unusual sort of thing and judicial officers ought to be required to stop long enough to see whether some prisoners ought to go and some not; whether some might not be killed by going; or whether they should go dead or alive. This class o f prisoners and this number of prisoners should haze been given special consideration. There cannot be any controversy about this question . . . . You ought to lawfully lock them up instead of unlawfully locking them up-if they are to be locked up . . . . The petitioners are, therefore, one and all, in the Workhouse 'without semblance of authority or legal process of any kind . . . . and they will accordingly be remanded to the custody of the Superintendent of the Washington Asylum and Jail." . . .

It having been decided that the prisoners were illegally detained in the workhouse, it was not necessary to go into a discussion of the cruelties committed upon the prisoners while there.