Notebook: Jackson and habeas corpus

Andrew Jackson

"Bad Precedent," my essay on Andrew Jackson and habeas corpus, appears in The New Yorker on 29 January 2007. As with earlier articles, I'm posting here a few outtakes and tips of the hat.

As ever, I owe the most to the book under review, Matthew Warshauer's Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship (available from Amazon and, for the same price, directly from the University of Tennessee Press).

I also learned much from three recent biographies of Jackson, very different in style and perspective. Jackson provokes feelings of surprising intensity, considering that he's a long-dead historical figure, and a great virtue of H. W. Brands's Andrew Jackson: His Life and Times is that it explains the sturm and drang around him in a calm, careful tone. Brands relies for the most part on published sources and doesn't offer new archival discoveries, but he places Jackson in context with impressive clarity, and his narrative is well constructed. (My only quibble is with his reliance, in a few places, on anecdotes about Jackson's early life from an early-twentieth-century account by Augustus C. Buell; Buell's stories were probably fiction, the scholar Milton W. Hamilton asserted in the Pennsylvania Magazine of History and Biography in 1956. Of course it's possible that Brands has found reason to dissent from Hamilton's athetization. . . .)

Brands offers a generous but highly readable 600-plus pages. Sean Wilentz's Andrew Jackson, by contrast, is as lean and sinewy as Jackson himself. It also shares with Jackson an appetite for controversy: at 195 pages, Wilentz's book is designed for the reader who wants an introduction to Jackson in the course of an afternoon, but Wilentz manages nonetheless to find room to mount a sophisticated defense of Jackson from attacks by other historians—attacks which, he argues, fail to take account of the political realities of Jackson's day. Among others, Wilentz critiques Andrew Burstein, who, in The Passions of Andrew Jackson, condemns Jackson harshly, as a person and as a leader. Burstein's isn't a straight biography, but rather a study from a perspective that's a little hard to describe—a mixture of social history, psychology, and cultural studies. Burstein scants the political context, which is a rather large piece of the puzzle to leave out. Still, Burstein seems to have immersed himself in the primary sources, and presents evidence, often highly colorful, that is not easy to find elsewhere.

The big books on Jackson are two three-volume biographies: James Parton's, issued in 1859 and 1860, and Robert Remini's, issued in 1977, 1981, and 1984. Parton seems to have had most of the important sources available to him, and he's a beautiful stylist. Here he is setting the scene of New Orleans: "The Mississippi is apparently the most irresolute of rivers; the bed upon which it lies cannot long hold it in its soft embrace." And here he is on the impossibility of recovering the truth about Jackson's duel with legislator Thomas Hart Benton:

Neither the eyes nor the memory of one of these fiery spirits can be trusted. Long ago, in the early days of these inquiries, I ceased to believe any thing they may have uttered, when their pride or their passions were interested; unless their story was supported by other evidence or by strong probability. It is the nature of such men to forget what they wish had never occurred; to remember vividly the occurrences which flatter their ruling passion; and unconsciously to magnify their own part in the events of the past.

All three volumes of Parton's biography of Jackson are in Google Books: volume 1, volume 2, and volume 3. (The image above is the frontispiece to volume 2.) Though Parton sees Jackson's merits, he is not a fan, as Remini sometimes is. Remini is a researcher of great energy and diligence, and I would guess that he's the only person who has discovered more about Jackson than Parton did. I found myself disagreeing with some of his analyses, however. For example, Remini argues that Jackson's New Orleans victory did affect the territorial outcome of the War of 1812, despite the prior signing of the Treaty of Ghent. That seems unlikely to me, on the face of it; moreover, in 1979, in the journal Diplomatic History, the scholar James A. Carr turned to British military correspondence and internal diplomatic memoranda to show that by the end of the War of 1812, the British wanted nothing more than to wash their hands of America and conflict with Americans.

The article by Abraham D. Sofaer that I refer to at the end of the article is "Emergency Power and the Hero of New Orleans," Cardozo Law Review 2 (1980): 233 ff. Also useful, as I was thinking through the legal issues, was Ingrid Brunk Wuerth's "The President's Right to Detain 'Enemy Combatants': Modern Lessons from Mr. Madison's Forgotten War," Northwestern University Law Review 98 (2004):1567 ff. Unfortunately, neither of these is available online for free, though they're easy to find in for-profit databases. In fact, I turned up remarkably few Internet-enhanced multimedia supplemental whirligigs during my tours of Web procrastination this time out, but no Andrew Jackson blog post would be complete without a reference to the large White House cheese, and someone has digitized all of Benson J. Lossing's Pictorial Field Book of the War of 1812, which has some of the best battle diagrams going, if you plan to read a blow-by-blow account and want some visual guidance. Of course, the Hamdan v. Rumsfeld decision is online, as is the Military Commissions Act of 2006, and they may be profitably read side by side.

His courtship and its consequences

Wikoffremin

In late 1851, Henry Wikoff was an American, a bastard, a spent-out heir, a former would-be newspaper mogul, a former theatrical impresario, and an about-to-be-fired secret agent for the British government. He was also a fortune-hunter, trying desperately to convince a woman named Jane Catherine Gamble to marry him—so desperately that when she lost interest, he kidnapped her. Although he went to jail for the crime, he managed, once free, to spin the experience into a surprise best-seller. Deceit, pistols, chloroform, sexual scandal, sexual ambiguity, manipulation of the mass media, women's rights, a racy trial transcript, inadvertently revealing quotations of Shakespeare, one of the first-ever American comic books, and an attestation of the phrase "confidence man" at least one year prior to any previous scholarly attestation of the phrase. The Wikoff-Gamble story has it all, and so I've made a short YouTube video about it, starring Kevin Spacey and Helen Mirren.

Oh, wait. No, actually, it seems that what I did was that I wrote a scholarly article about it, instead. Well, that's nearly as exciting, no? I mean, you aren't the sort of people who would click on a link to a YouTube video but avoid a scholarly article?

For the record, by the way, you're getting this at an incredible price point. A subscription to American Literary History costs $55, and a single issue of the journal $17. And you're getting it free, by virtue of the secret link to the article that the journal editors sent me. In other words, if you go direct to the ALH website and search for the article, well, first of all you won't find it, because it's not officially published yet, but even if you were to find it, you'd have to pay actual money to read it. Honestly, how often do you get to read a 36-page academic article for free? Plus, there are pictures.

Caleb Crain, "The Courtship of Henry Wikoff; or, a Spinster's Apprehensions," American Literary History Winter 2006 (not yet paginated).

Image (above): Frontispiece of The Reminiscences of an Idler by Henry Wikoff (New York: Fords, Howard & Hulbert, 1880). (my photo of my own copy of the book; feel free to reproduce)

Kaboom

“The Terror Last Time,” my article about the 1886 trial of Chicago’s Haymarket anarchists, which is in part a review of James Green’s new book Death in the Haymarket, is published in the 13 March 2006 New Yorker. As it happens, there are many Haymarket resources on the web, so I thought I’d link to a few of them. What follows will seem a little scattered unless you read my article first (ahem), but if you’ve done that, then . . .

If you want to read the witnesses’ testimony yourself, the Chicago Historical Society has published the trial transcript in the Haymarket Affair Digital Collection. The collection has all sorts of neat tidbits. If you thought my description of Louis Lingg’s beauty was a bit too breathless, for example, you can judge for yourself here. If you want to see exactly how nut and bolt screwed together to make a bomb, look here, for a bomb allegedly Lingg’s. The historical society also collaborated with Northwestern University to create Dramas of the Haymarket, a sort of online guided tour of the archival holdings.

The 2003 re-analysis of the Haymarket bomb fragments and evidence was described in this article by Timothy Messer-Kruse, James O. Eckert Jr., Pannee Burckel, and Jeffrey Dunn in a 2005 issue of the journal Labor: Studies in Working-Class History of the Americas.

The night before Parsons, Spies, Engel, and Fischer were hanged, Parsons sang the Scotch ballad “Annie Laurie.” There’s no recording of Parsons himself singing it, but there’s a period recording of the song by the Edison Male Quartette in the UC Santa Barbara Cylinder Preservation and Digitization Project. As I mention in the article, the next morning, just a few hours before they were hanged, the men sang the “Workers’ Marseillaise” together. The three German speakers may well have sung in German, and I strongly suspect that that’s what’s being sung in this period recording. I’m not sure, though, because my German comprehension is extremely poor; it’s the right tune, certainly, and someone has catalogued it under the title Arbeiter, i.e., “workers.”

Neither new nor rare

Historians have debated at length the question of when certain ideas about homosexuality came into currency. Here’s a piece of evidence, not previously reported to my knowledge:

In the Supreme Judicial Court of Massachusetts on 11 December 1868, a young man named Samuel M. Andrews was tried for murder. He pleaded not guilty by reason of “transitory insanity.” He was driven mad, he said, by Cornelius Holmes’s attempt to have sex with him.

It was a strange, sad case. According to the prosecuting attorney, Cornelius Holmes was not like other men. He was fifty-three years old at the time of his death and weighed 225 pounds. A bachelor, he lived alone in a boarding house. Though he had no occupation, he was said to be worth $20,000. The prosecution claimed that “The only person with whom he was at all intimate was the prisoner,” Andrews, who had killed him. The defense more or less agreed with this characterization of their relationship. Andrews “was almost the first young man Cornelius Holmes had ever met, who had not slurred him, & hooted at him,” Andrews’s attorney said. He added that Holmes “was not an idiot; . . . He was rather slow; played in childhood with children younger than himself.”

How intimate were they? The lawyers tried to bring this out. There was a telling exchange during the examination of a witness named Lysander Bartlett, a ship’s carpenter:

Question. Were Cornelius & Andrews intimate friends?

Witness. Mr. Andrews can tell you better than I can.

Chief Justice. You should not say to counsel that Andrews can tell you that better than I can. It is improper.

Witness. ‘Tis, eh? I knew they were intimate. . .

After Andrews was arrested for the murder, witnesses saw him kiss Holmes’s body.

In court, Andrews had a difficult task: he had to establish the nature of Holmes’s interest in him, and he had to make it sound plausible that he had resisted Holmes’s advances despite their persistence. He didn’t quite manage. He testified that “about nine years ago one stormy evening,” he and Holmes had shared a bed. “After talking awhile he turned towards me, & tried to put a part of his person between my legs, behind. I left the bed.” Though Holmes made other advances, the friendship continued. In fact there were hints that Holmes had thought of leaving his money to Andrews.

The murder came about one day when Holmes beckoned Andrews to follow him off the road and into the forest. Once they were alone, Holmes threw him down, tore open his pantaloons, put his hand in a relevant place, and said, “Now I’m going to have some, this time.” In a panic, Andrews grabbed a stone . . . That, at any rate, is what Andrews claimed in court, though he also claimed, confusedly, that he was “entirely unconscious of what took place.”

In summing up, the defense stressed how common Holmes’s tendency was:

Nor, gentlemen, is this any new crime. Go to our soldiers & sailors, inquire of our naval officers & see whether it is a new crime. The government would have you believe that this is an improbable story, because the crime is rare; gentlemen, this story is more than probable, for it is a crime which has always existed.

The prosecution, on the other hand, stressed how unlikely it was that Andrews would have had to kill Holmes in order to defend himself from rape. “Rape,” the prosecution insisted, wasn’t even the right word; in fact, the proper word didn’t exist, because the thing was impossible. The whole question of sex between men, the prosecution suggested, was probably a red herring: “There was in the present case no adequate evidence of any voluntary acts of indecency between the parties,” the prosecution argued, “but even if such existed, these had no tendency to prove an attempt to commit this act by force.”

In his instructions to the jury, the judge observed that Andrews had taken Holmes’s earlier advances quite calmly and had remained his close friend despite them. Taking the hint, the jury found Andrews guilty of manslaughter, and he was sentenced to twenty years.

(Source: Report of the Trial of Samuel M. Andrews, Indicted for the Murder of Cornelius Holmes, before the Supreme Judicial Court of Massachusetts, December 11, 1868, including the Rulings of the Court upon Many Questions of the Law, and a Full Statement of Authorities upon the Subject of Transitory Insanity. By Charles G. Davis, of Counsel for the Prisoner. New York: Hurd & Houghton. Cambridge: Riverside Press, 1869.)

On loafers

Did Walt Whitman attend Reverend William Patton’s 9 March 1852 lecture on loafers at the Broadway Tabernacle in New York? The somewhat derogatory term had been in circulation for at least a decade, and Whitman, not yet the poet of Leaves of Grass, had already used it in his journalism. But Patton put a torque on the word that would probably have stuck in Whitman’s mind, if he had been in attendance.

Patton gave a conventional etymology and definition. The word loafer “was supposed to be derived from the German laufen (to run). . . . A feature of the loafer’s character is unwillingness to work; he loves idleness.” But when Patton elaborated his idea of the loafer, he prefigured some of Whitman’s imagery. The loafer, he said,

would wonderfully enjoy Eden, where fruits grew without cultivation, and he would have nothing to do but enjoy himself. The probability is, if he could have directed his own creation, he would have had himself made a vegetable, not an animal, and that he should be planted in a deep soil.

In his 1855 poem, Whitman would write

I loafe and invite my soul,
I lean and loafe at my ease . . . . observing a spear of summer grass.

The poem’s narrator goes on to consider the spiritual meanings of grass, again and again, until at last he seems to become one with it:

I bequeath myself to the dirt to grow from the grass I love,
If you want me again look for me under your bootsoles.

Patton told his audience that the loafer was “a poetical, transcendental philosopher, believing in the beauty of life per se.” Such a belief was expected to sound ridiculous; at lecture’s end, Patton reminded his listeners that idleness was the devil’s plaything and exhorted them to “Be a street sweeper, be a scavenger, if need be, but do not be a loafer.” But a poet might have listened with a contrary and selective ear, and taken the mockery as a compliment.

Patton seems to have devoted the bulk of his speech to a catalog of the

various characters of loafers—the youthful and adult vulgar loafer; the musical loafer, who is generally a brawny Swiss or Italian; the fashionable loafer, a very exquisite and highly finished variety; the wealthy and retired loafer; the military and naval loafer, . . . ; the political loafer . . . ; the aristocratic loafer . . . [and] the “ecclesiastical loafer.”

According to Patton’s complaint, the loafer is everywhere, because he “adapts himself to the most contradictory circumstances of wealth and poverty, ignorance and education.” In Whitman’s hands, of course, the range of identities available to the loafer-poet would become a boast:

In all people I see myself, none more and not one a barleycorn less,
And the good or bad I say of myself I say of them.