The First Chapter of Children’s Rights

In the quiet New York courtroom, the little girl began to speak. “My name is Mary Ellen McCormack. I don’t know how old I am. … I have never had but one pair of shoes, but can’t recollect when that was. I have had no shoes or stockings on this winter.… I have never had on a particle of flannel. My bed at night is only a piece of carpet, stretched on the floor underneath a window, and I sleep in my little undergarment, with a quilt over me. I am never allowed to play with any children or have any company whatever. Mamma has been in the habit of whipping and beating me almost every day. She used to whip me with a twisted whip, a raw hide. The whip always left black and blue marks on my body. I have now on my head two black and blue marks which were made by mamma with the whip, and a cut on the left side of my forehead which was made by a pair of scissors in mamma’s hand. She struck me with the scissors and cut me. I have no recollection of ever having been kissed, and have never been kissed by mamma. I have never been taken on my mamma’s lap, or caressed or petted. I never dared to speak to anybody, because if I did I would get whipped. … Whenever mamma went out I was locked up in the bedroom. … I have no recollection of ever being in the street in my life.”

At the beginning of 1874, there were no legal means in the United States to save a child from abuse. Mary Ellen’s eloquent testimony changed that, changed our legal system’s view of the rights of the child.

Yet more than a century later the concerns that arose from Mary Ellen’s case are still being battled over in the courts. The classic dilemmas of just how deeply into the domestic realm the governmental arm can reach and what the obligations of public government are to the private individual take on particular urgency in considering child abuse.

Early in 1989, in the case of DeShaney v. Winnebago County, the Supreme Court declared that the government is not obligated to protect its citizens against harm inflicted by private individuals. DeShaney brought the case be- fore the court in a suit against county social service agencies that had failed to intervene when her estranged husband abused their son, Joshua, who, as a result of his father’s brutality, suffered permanent brain damage. The father was convicted, but his former wife believes that fault also lies with the agencies, whose failure to intercede violated her son’s Fourteenth Amendment right not to be deprived of life or liberty without due process of the law. Chief Justice William H. Rehnquist wrote that intervening officials are often charged with “improperly intruding into the parent-child relationship.” Justice William J. Brennan, Jr., dissenting, wrote: “Inaction can be every bit as abusive of power as action, [and] oppression can result when a State undertakes a vital duty and then ignores it.”

The difficulty in bringing Mary Ellen McCormack into the New York Supreme Court in 1874 grew from similar controversy over the role of government in family matters, and Mary Ellen’s sad history is not so different from Joshua DeShaney’s.

When Mary Ellen’s mother, Frances Connor, immigrated to the United States from England in 1858, she took a job at the St. Nicholas Hotel in New York City as a laundress. There she met an Irishman named Thomas Wilson who worked in the hotel kitchen shucking oysters. They were married in April 1862, shortly after Wilson had been drafted into the 69th New York, a regiment in the famous Irish Brigade. Early in 1864 she gave birth to their daughter, whom she named Mary after her mother and Ellen after her sister.

The birth of her daughter seems to have heralded the beginning of Frances Wilson’s own decline. Her husband was killed that same year in the brutal fighting at Cold Harbor, Virginia, and with a diminished income she found it necessary to look for a job. In May 1864, unable to pay someone to watch the baby while she was at work, she gave Mary Ellen over to the care of a woman named Mary Score for two dollars a week, the whole of her widow’s pension. Child farming was a common practice at that time, and many women made a living taking in unwanted children just as others took in laundry. Score lived in a tenement in the infamous warrens of Mulberry Bend, where thousands of immigrants crowded into small, airless rooms, and it is likely that providing foster care was her only means of income.

Finally Frances Wilson became unable to pay for the upkeep of her child; three weeks after the payments ceased, Score turned Mary Ellen over to the Department of Charities. The little girl… whose mother was never to see her again—was sent to Blackwells Island in July 1865. Her third home was certainly no more pleasant than Mulberry Bend. Mary Ellen was among a group of sick and hungry foundlings; fully two-thirds of them would die before reaching maturity.

The same slum-bred diseases that ravaged the children on Blackwells Island had also claimed all three children of a couple named Thomas and Mary McCormack. So when Thomas frequently bragged of the three children he had fathered by another woman, his wife was more receptive to the idea of adopting them than she might otherwise have been. Those children, he told her, were still alive, though their mother had turned them over to the care of the city.

On January 2, 1866, the McCormacks went to the Department of Charities to reclaim one of the children Thomas’s mistress had abandoned. The child they chose as their own was Mary Ellen Wilson. Because the McCormacks were not asked to provide any proof of relation to the child and gave only the reference of their family doctor, there is no evidence that Thomas was in any way related to the child he brought home that day. More than a month later an indenture was filed for Mary Ellen in which the McCormacks promised to report on her condition each year. There were no other requirements.

Shortly after bringing the child home, Thomas McCormack died, and his widow married a man named Francis Connolly. Little more than that is known of the early childhood of Mary Ellen. She came to her new home in a flannel petticoat, and when her clothing was removed from Connolly’s home as evidence six years later, there was barely enough to fill a tiny suitcase. She was beaten, set to work, deprived of daylight, and locked in closets for days at a time; she was rarely bathed, never kissed, and never addressed with a gentle word. During the six years she lived with Connolly, only two reports on her progress were filed with the Commissioners of Charities and Correction.

Late in 1873, Etta Angell Wheeler, a Methodist caseworker serving in the tenements of New York City, received a disturbing report. It came from Margaret Bingham, a landlord in Hell’s Kitchen, and told of a terrible case of child abuse. The child’s parents had been tenants of Bingham for about four years, and almost immediately after they moved in, Bingham began to observe how cruelly they treated their child, Mary Ellen. They confined her in close quarters during hot weather, kept her severely underdressed in cold, beat her daily, and left her unattended for hours at a time. On several occasions, Bingham tried to intervene; each time the child’s mother said she would call upon the fullest resources of the law before she would allow any interference in her home. Finally, Bingham resorted to threat: The beatings and ill treatment would have to stop, or the family would be evicted. When her plan backfired and the family left, Bingham, in a last-ditch effort, sent for Etta Wheeler. In order to observe Mary Ellen’s predicament, Wheeler went to the Connollys’ neighbor, an ailing tubercular woman named Mary Smitt. Enlisting Smitt’s aid, she proposed that Mary Ellen be sent over each day to check on the patient. Smitt reluctantly agreed, and on the pretext of inquiring about this sick neighbor, Wheeler knocked on Mary Connolly’s door.

Inside she saw a “pale, thin child, bare-foot, in a thin, scanty dress so tattered that I could see she wore but one garment besides.

“It was December and the weather bitterly cold. She was a tiny mite, the size of five years, though, as afterward appeared, she was then nine. From a pan set upon a low stool she stood washing dishes, struggling with a frying pan about as heavy as herself. Across the table lay a brutal whip of twisted leather strands and the child’s meager arms and legs bore many marks of its use. But the saddest part of her story was written on her face in its look of suppression and misery, the face of a child unloved, of a child that had seen only the fearsome side of life. … I never saw her again until the day of her rescue, three months later. …”

Though social workers often witnessed scenes of cruelty, poverty, and grief, Wheeler found Mary Ellen’s plight especially horrifying. She went first to the police; they told her she must be able to furnish proof of assault in order for them to act. Charitable institutions she approached offered to care for the child, but first she must be brought to them through legal means. There were none. Every effort Wheeler made proved fruitless. Though there were laws to protect children—laws, in fact, to prevent assault and battery to any person—there were no means available for intervention in a child’s home.

Finally Wheeler’s niece had an idea. The child, she said, was a member of the animal kingdom; surely Henry Bergh, the founder of the American Society for the Prevention of Cruelty to Animals, who was famous for his dramatic rescue of mistreated horses in the streets of New York, might be willing to intervene. Within the hour Wheeler had arranged a meeting with Bergh. Despite its apparent strangeness, this sort of appeal was not new to Bergh. Once before, he had tried to intervene in a case of child abuse and had failed. This time he was more cautious.

“Very definite testimony is needed to warrant interference between a child and those claiming guardianship,” Bergh told Wheeler. “Will you not send me a written statement that, at my leisure, I may judge the weight of the evidence and may also have time to consider if this society should interfere? I promise to consider the case carefully.”

Wheeler provided a statement immediately, including in it the observations of neighbors to whom she had spoken. Bergh was convinced. “No time is to be lost,” he wrote his lawyer, Elbridge T. Gerry. “Instruct me how to proceed.”

The next day, Wheeler again visited the sick woman in Hell’s Kitchen and found in her room a young man who, on hearing Wheeler’s name, said, “I was sent to take the census in this house. I have been in every room.” Wheeler then knew him to be a detective for Bergh.

On the basis of the detective’s observations and the testimony provided by Etta Wheeler, Bergh’s lawyers, Gerry and Ambrose Monell, appeared before Judge Abraham R. Lawrence of the New York Supreme Court to present a petition on behalf of Mary Ellen. They showed that Mary Ellen was held illegally by the Connollys, who were neither her natural parents nor her lawful custodians, and went on to describe the physical abuse Mary Ellen endured, the marks and bruises on her body, and the general state of deprivation that characterized her existence. They offered a list of witnesses willing to testify on behalf of the child and concluded by stating that there was ample evidence to indicate that she was in clear danger of being maimed or even killed. The lawyers requested that a warrant be issued, the child removed from her home and placed in protective custody, and her parents brought to trial.

Bergh testified that his efforts on behalf of the child were in no way connected to his work with abused animals and that they did not make use of the special legal provisions set up for that purpose. Because of Bergh’s association with animal rescue, to this day the case is often described as having originated in his conviction that the child was a member of the animal kingdom. Bergh, however, insisted that his actions were merely those of any humane citizen and that he intended to prevent cruelties inflicted on children through any legal means available.

Judge Lawrence issued a warrant under Section 65 of the Habeas Corpus Act as requested. This provision read in part: “Whenever it shall appear by satisfactory proof that any one is held in illegal confinement or custody, and that there is good reason to believe that he will … suffer some irreparable injury, before he can be relieved by the issuing of a habeas corpus or certiorari , any court or officer authorized to issue such writs, may issue a warrant … [and] bring him before such court or officer, to be dealt with according to law.”

The press of the day hailed Gerry’s use of Section 65 of the Habeas Corpus Act as brilliant. The act was rarely invoked, and the legal means for removing a child from its home were nonexistent. In using the little-known law, Gerry created a new method for intervention.

That same day, April 9, 1874, Mary Ellen was taken from her home and brought into Judge Lawrence’s court. Having no adequate clothing of her own, the child had been wrapped in a carriage blanket by the policemen who held her in custody. A reporter on the scene described her as “a bright little girl, with features indicating unusual mental capacity, but with a care-worn, stunted, and prematurely old look. … no change of custody or condition could be much for the worse.”

The reporter Jacob Riis was present in the court. “I saw a child brought in … at the sight of which men wept aloud, and I heard the story of little Mary Ellen told … that stirred the soul of a city and roused the conscience of a world that had forgotten, and as I looked, I knew I was where the first chapter of children’s rights was being written.” Her body and face were terribly bruised; her hands and feet “showed the plain marks of great exposure.” And in what almost instantly seemed to condemn Mrs. Connolly before the court, the child’s face bore a fresh gash through her eyebrow and across her left cheek that barely missed the eye itself. Mary Ellen was to carry this scar throughout her life.

Interestingly, there is no further mention in the ample reports surrounding Mary Ellen’s case of her foster father, Francis Connolly. He was never brought into court, never spoke publicly concerning the child. All her life Mary Ellen exhibited a frightened timidity around men, yet it was against her foster mother that she testified.

On the evening of her detention, Mary Ellen was turned over to the temporary custody of the matron of police headquarters. The next day, April 10, the grand jury read five indictments against Mary Connolly for assault and battery, felonious assault, assault with intent to do bodily harm, assault with intent to kill, and assault with intent to maim. Once the stepmother had been brought into the legal system, there were ample means to punish her.

Mary Ellen herself was brought in to testify against the woman she had called her mother. On her second appearance in court she seemed almost wholly altered. She was clothed in a new suit, and her pale face reflected the kindness that surrounded her. She carried with her a new picture book, probably the first she had ever owned. She acted open and uninhibited with strangers, and interestingly, seemed to show no great fear of her mother or any apparent enmity toward her.

The lawyers Gerry and Monell gathered several witnesses against Mary Connolly, among them neighbors, Wheeler, and Mary Ellen herself. Margaret Bingham said she had seen the child locked up in a room and had told other neighbors, but they said there was no point in interfering since the police would do nothing. Bingham had tried to open the window of the child’s room to let in some air, but it would not lift more than an inch. As a constant presence and reminder, a cowhide whip was locked in the room with the child. Wheeler recounted her first visit to Mary Ellen, during which the child washed dishes that seemed twice her size and was apparently oblivious of the visitor’s presence. The whip lay on the table next to her. The next day, when Wheeler came by again, the child was sewing, and the whip lay on a chair near her.

Then it was the mother’s turn to testify. On the witness stand Mary Connolly showed herself to be a woman of some spirit. Despite her treatment of the child, there is something compelling in Connolly’s strength and humor. At one point the prosecutor asked if she had an occupation beyond housekeeping. “Well,” she said, “I sleep with the boss.” As the trial wore on, she became enraged at Gerry’s prodding questions; finally she accused him of being “ignorant of the difficulties of bringing up and governing children.” Yet she admitted that contrary to regulations, in the six years she had Mary Ellen in her custody, she had reported on her condition to the Commissioners of Charities and Correction only twice.

Two indictments were brought against Connolly, the first for her assault on the child with scissors on April 7, the second for the continual assaults inflicted on the child throughout the years 1873 and 1874. After twenty minutes of deliberation, the jury returned a verdict of guilty of assault and battery. Connolly was sentenced to one year of hard labor in the city penitentiary, then known as the Tombs. In handing down this sentence, the judge defined it not only as a punishment to Connolly but also as a statement of precedence in childabuse cases.

Mary Ellen never returned to the Connollys’ home. In the ensuing months the publicity that her case received brought in many claims of relation. But on investigating, her guardian, Judge Lawrence, discovered the stories were fictions, and he finally placed the child in the Sheltering Arms, a home for grown girls; soon after, she was moved to the Woman’s Aid Society and Home for Friendless Girls. This mirrors another critical problem in the system’s treatment of minors. All juveniles were handled by the Department of Charities and Correction, and whether they were orphaned or delinquent, their treatment was the same. And so it was that the ten-yearold Mary Ellen was placed in a home with mostly delinquent adolescents.

Etta Wheeler knew this was wrong for Mary Ellen, and she expressed her hesitations to Judge Lawrence. He, in turn, consulted with Henry Bergh, and eventually they agreed to turn the girl over to Etta Wheeler herself. Unable to imagine giving up her work in the slums of New York City but believing that Mary Ellen deserved a better envi- ronment, Wheeler brought the child to her mother in North Chili, New York. Wheeler’s mother became ill shortly afterward, and Mary Ellen was raised mostly by Wheeler’s sister.

Here began a new life,” Wheeler wrote. “The child was an interesting study, so long shut within four walls and now in a new world. Woods, fields, ‘green things growing,’ were all strange to her, she had not known them. She had to learn, as a baby does, to walk upon the ground,—she had walked only upon floors, and her eye told her nothing of uneven surfaces. … But in this home there were other children and they taught her as children alone can teach each other. They taught her to play, to be unafraid, to know her rights and to claim them. She shared their happy, busy life from the making of mud pies up to charming birthday parties and was fast becoming a normal child.”

The happiness of her years in the upstate New York countryside lies in stark contrast to her early childhood. And indeed, as Wheeler wrote, she learned by example the ways of normal childhood. She grew up strong and well, learning how to read and playing with friends and pet kittens. In 1875 Wheeler reported to Gerry that Mary Ellen was growing up as a normal child. “She has some faults that are of the graver sort. She tells fibs and sticks to them bravely, steals lumps of sugar & cookies and only confesses when the crumbs are found in her pocket—in short she is very much like other children, loving—responding to kindness & praise, hating a task unless there be a play, or a reward thereof, and inevitably ‘forgetting’ what she does not wish to remember—what children do not do some or all of these forbidden things! She is a favorite with nearly all the people who have come to know her.”

When she was 24, Mary Ellen married a widower named Louis Schutt and with him had two children, Etta—named after the woman who had rescued her—and Florence. She adopted a third, orphaned child, Eunice. She also raised Louis Schutt’s three children from his first wife.

In 1911, Wheeler visited her protégé in her home, “finding her well and happy. … The family income is small, but Mary Ellen is a prudent housewife & they are comfortable. The two daughters are promising girls.” The eldest daughter, Etta, worked industriously through that summer, finished high school, and became a teacher. Florence followed her sister’s path, teaching first grade for thirty-eight years. When she retired, the elementary school in North Chili was renamed in her honor. Eunice earned a business degree, married, and raised two sons.

Florence remembers her mother as a solemn woman who came alive whenever she listened to Irish jigs and especially to “The Irish Washerwoman.” She was unfailingly generous with her time and her affection. Her years in North Chili had saved her from the vicious cycle abused children often suffer of becoming abusers themselves. According to Florence her mother was capable of sternness and certainly willing to punish her daughters, but the terrible experiences of her early childhood never spilled into her own child rearing. As Etta Wheeler wrote, “To her children, two bright, dutiful daughters, it has been her joy to give a happy childhood in sharp contrast to her own.”

Etta and Florence often asked their mother about the Coninollys, but Mary Ellen was reluctant to speak of her early years. She did show her daughters the scars on her arms where she had been burned with a hot iron, and of course they could see the scissors scar across her face. Florence distinctly recalls that in the few times they spoke of her mother’s years in New York City, she never mentioned a woman inflicting her injuries; it was always a man.

In October of 1913, Mary Ellen Schutt attended a meeting of the American Humane Society in Rochester. She was accompanied by Etta Wheeler, who was there to present a paper entitled “The Finding of Mary Ellen.” The paper concluded: “If the memory of her earliest years is sad, there is this comfort that the cry of her wrongs awoke the world to the need of organized relief for neglected and abused children.”

Mary Ellen died on October 30, 1956, at the age of 92. She was survived by her two daughters, her adopted daughter, three stepchildren, three grandchildren, and five greatgrandchildren. More important, she was survived by the beginning of a movement to prevent the repetition of tragedies like her own. On December 15, 1874, Henry Bergh, Elbridge Gerry, and James Wright founded the New York Society for the Prevention of Cruelty to Children (SPCC) with the ample assistance of Cornelius Vanderbilt. It was the first organization of its kind in America. At the outset of their work, the founders signed a statement of purpose: “The undersigned, desirous of rescuing the unprotected children of this city and State from the cruelty and demoralization which neglect and abandonment engender, hereby engage to aid, with their sympathy and support, the organization and working of a Children’s Protective Society, having in view the realization of so important a purpose.”

The SPCC saw its role essentially as a legal one. As an agent or a friend of the court, the society endeavored to intervene on the behalf of children, enforcing the laws that were in existence to prevent cruelty toward them and at the same time introducing new legislation on their behalf.

At the first meeting of the SPCC on December 16, 1874, Gerry stressed the fact that the most crucial role of the society lay in the rescue of children from abusive situations. From there, he pointed out, there were many excellent groups available to care for and shelter children and many state laws to punish abusive parents. He went on to predict that as soon as abusers learned that the law could reach them, there would be few cases like that of Mary Ellen.

Bergh was less optimistic. At the same meeting, he pointed out that neglected and abused children were to become the mothers and fathers of the country and that unless their interests were defended, the interests of society in general would suffer.

In its first year, the SPCC investigated more than three hundred cases of child abuse. Many people felt threatened by the intrusion of the government into their private lives; discipline, they believed, was a family issue, and outside influence was not only unwelcome but perhaps even unconstitutional. When, with the aid of a state senator, James W. Booth, Gerry introduced in the New York legislature a law entitled “An Act to Prevent and Punish Wrongs to Children,” the proposal was immediately and vigorously attacked. The New York World wrote that Bergh was to be authorized to “break into the garrets of the poor and carry off their children upon the suspicion of spanking.” According to the World , the law would give Bergh “power to discipline all the naughty children of New York. … We sincerely hope that it may not be finally kicked out of the legislature, as it richly deserves to be, until the public mind shall have had time to get itself thoroughly enlightened as to the state of things in which it has become possible for such a person as Mr. Bergh to bring the Legislature to the point of seriously entertaining such an impudently senseless measure. This bill is a bill to supersede the common law in favor of Mr. Bergh, and the established tribunals of justice in favor of an irresponsible private corporation.” The bill was passed in 1876, however, and became the foundation upon which the SPCC performed its work.

From its initial concentration on preventing abuse in the home, the society broadened its franchise to battle neglect, abandonment, and the exploitation of children for economic gain. In 1885, after considerable effort by the SPCC and in the face of yet more opposition, Gerry secured passage of a bill that made labor by children under the age of 14 illegal.

As the explosive story of the death of Lisa Steinberg in the home of her adoptive parents revealed to the nation in 1987, abuse still haunts American society. There are still legal difficulties in removing a child from an abusive situation. In 1987, the House Select Committee on Children, Youth, and Families reported that the incidence of child abuse, particularly sexual abuse and neglect, is rising; in 1985 alone, almost two million children were referred to protective agencies. In part, the committee said, this increase was due to a greater awareness of the issue, and there has also been an increased effort to educate children themselves about situations that constitute abuse or molestation and about ways to get help.

Despite the numerous programs designed to address abuse, the committee concluded that not enough is being done. The most effective programs were found to be those that worked to prevent the occurrence of abuse at the outset through education in parenting techniques, through intervention in high-risk situations, such as unwanted pregnancies, and through screening for mental and emotional difficulties. However, funding for public welfare programs has fallen far below the demands, and what funding there is must frequently be diverted to intervene in more and more sensational and hopeless cases.

If there is still much hard, sad work ahead, there is also much that has been accomplished. And all of it began when Mary Ellen McCormack spoke and, in speaking, freed herself and thousands of other children from torment.