by Beth Macy
The gorilla’s backstory grew more elaborate as the train made its usual fall journey south: captured at the age of two, traded by a sea captain, five feet six and “growing more evil tempered” by the moment—with a daily diet that included sixteen bananas, twelve oranges, three milk shakes, and a half-pound of calf liver brought to a boil.
“We yielded, but we made the most of it,” North wrote. The brothers called in press photographers to record John Ringling North handing over a wad of cash to union leader Ralph Whitehead, under the caption “Whitehead Getting His Pound of Flesh.” Republicans blamed the closure on the New Deal, with one congressman declaring, “Not even this great circus can compete with the circus the New Deal is giving us.”
With movies and radio threatening to eclipse the circus in cash-strapped Americans’ eyes, the big top struggled to maintain a luster of novelty. As one longtime showman described it: “The kids of today ain’t so wide-eyed and amazed at what they see at a circus as they was a quarter of a century ago. So many marvelous things goes on all the time in this day and age that kids probably expect more from a circus now than it’s humanly possible to give.”
Maybe the Muse brothers’ next act would add some drama, if not in front of the stage, then certainly behind the scenes.
Attorney Warren Messick had not been available for Harriett’s hire this time around. Wrapped up in the multifaceted moonshine-conspiracy trial, he was representing two West Virginia moonshiners in an ancillary case connected to the Franklin County trial: the men were accused of murdering a sheriff’s deputy as payback for his role in the death of their brother in a whiskey-running car chase. Messick, ultimately, lost the murder trial, though his defendants’ sentences were considered light.
It isn’t clear how Harriett found her way instead to the downtown law offices of Roanoke lawyer Wilbur Austin. But she did, sometime in the early fall of 1936, around the time her sons were being photographed outside a sideshow tent in Lincoln, Nebraska. In a backyard candid shot—“caught by the cameraman here sunning themselves,” as the local newspaper put it—George and Willie sit next to a tent with Athelia perched on their laps, her long dress draped over their knees. The splendor of their pre-Depression tuxedos has been replaced by simpler white blouses and loose, looping ascots.
Austin’s personality mirrored the economic mood, too. He was not nearly as flashy as Messick. “Compared to Squeak, Mr. Austin was deadly dull,” according to Harvey Lutins, Messick’s longtime coworker and protégé. Lutins strenuously and repeatedly tried to steer me to write more about Messick, who still fascinated him fifty years after Messick’s death.
Unlike the disheveled Messick, the buttoned-up Austin had no oratorical flair for fallback. He had to pay attention to every detail. And he did.
Descended from a prominent family in nearby Botetourt County, Austin was politically connected in the state capitol of Richmond—his sister was married to the man who advised several Virginia governors of that era. His father-in-law’s family included a governor and several influential Virginia lawmakers.
Austin may have been dull, but he was also the perfect person to come up with a permanent, court-approved solution for getting Candy Shelton out of the Muse brothers’ lives. The fix would take care of Harriett Muse—and her sons—and reward Austin, too.
In an extended guardianship case called Harriett Muse v. George and Willie Muse, Harriett petitioned a Roanoke court to have her sons declared “practically imbeciles,” though the ploy was likely Austin’s idea, according to scholars and lawyers who analyzed the legal records at my request. The “boys,” as the petition called them (though they were now in their forties), “are not mentally capable of entering into a contract or attending to business for themselves,” the petition stated.
It was a cruel-sounding but pragmatic legal maneuver that guaranteed every paycheck would henceforth be monitored by a court and divvied up accordingly. At Austin’s request, the Roanoke judge and future Virginia governor Lindsay Almond appointed Austin to be the committee (pronounced “com-a-TEE”), in charge of their financial affairs. (The term today would be “conservator” or “guardian.”)
The judge then ordered Austin to negotiate with Ringling lawyers, winning the brothers a three-year contract that began in November 1936. As far as the money was concerned, Shelton was bypassed entirely now.
The circus would pay the Muses $115 a month, including during the off-season. Harriett would get $60 of their monthly salary, set aside “for her care and maintenance,” and Austin $15 for his monthly legal fee.
The rest, or about a third, would go into a savings account established for the brothers, reserved as a kind of retirement fund—a novel idea, considering that Social Security payments for retired Americans were still four years away.
The case would spawn ongoing filings for more than three decades. Financial records, called settlement accounts, would be filed regularly with the courts, documenting every dollar earned and every dollar spent on the brothers’ behalf, from groceries to expenses for trips home to visit family to property, including, even, their grave sites.
Austin was also court-ordered to track down, if he could, the back pay owed by Kortes during the Beckmann and Gerety stint. And if Shelton tried to insert himself into the pay process—they had reason to believe he would—judicial repercussions would be triggered. Austin would eventually talk the judge into decreeing that George and Willie “could not be taken from the jurisdiction of this Court by J. H. Shelton or anyone else” without Almond’s permission. All future showmen seeking to employ the brothers had to be approved, in person, by the court.
It was an astonishingly twisted legal end run, unusual if not singular among sideshow performers of the time. “The judge did it because I’m sure it was the only way to get justice for them,” said Richmond lawyer Tom Word, who writes about Virginia legal history. He doubted the court even had a doctor present to weigh in on George’s and Willie’s alleged imbecility.
Indeed, the files contain no medical evaluation from a doctor or any professional testimony about the brothers’ mental status. Their illiteracy, combined with their near-blindness and dancing eyes, was probably convincing enough. They were likely led into the courtroom by relatives, judging from another photo from this period that shows them being flanked by circus minders outside a tent: George and Willie are squinting in the late-day sun with two men and a woman clutching their arms, presumably so they won’t stumble or trip over the nearby tent ropes.
The agreement was probably a backroom deal between Austin and the judge. “It allows the person to have control of them physically but, more importantly, to collect the money on their behalf,” said Paul Lombardo, a Georgia State University law professor and bioethics expert who reviewed the filings. “It’s about creating a conduit for the money because the guardian has a motive for collecting: he gets paid, and the mom gets paid.
“It’s weird… but what else did she have the power to do?”
It was also illegal, by today’s standards, from the rubber-stamping of the brothers’ mental status to the payments to Harriett Muse, whom Austin described in a subsequent legal filing as “a very good old colored woman.”
In a 1938 letter, Austin called Harriett “penniless and absolutely dependent on the stipulation allowed by the Court each month.” Unemployment was back on the rise, after slight declines in 1936 and 1937. And though members of the Roanoke Country Club were delighted to learn that a swimming pool would soon be constructed for their recreation, people in Jordan’s Alley were none so fortunate.
Those who couldn’t pay their rent were beholden to white landlords who refused to fix broken fixtures or repair structural flaws and sent their collectors out to terrorize renters in arrears—some of whom were forced to pay in sexual favors, recalled multiple elderly residents who grew up in Roanoke’s West End in the 1930s and ’40s.
There were no real protections in place for low-income renters. It would be five more decades before
Roanoke hired adequate rental-property inspectors, and only in the wake of an elderly resident freezing to death just a few yards from Harriett’s house, on Ten-and-a-Half Street. “I can remember as a kid, riding on that old narrow Tenth Street trestle bridge,” said Dan Webb, the city’s current code-compliance coordinator. “You’d look over to the side and see those shotgun shanties with no paint and no front yard, all crammed together.”
The rail-yard bridge that Harriett’s grandchildren had to cross, along with Sweet Sue and Mother Ingram, to get to the all-black Harrison School? Webb described it as wooden planks topped by asphalt. He remembered hearing the ka-clunk, ka-clunk of the boards when his father’s car crossed the bridge. “You smelled the creosote, and, as a kid, to me, that was the smell of poverty.”
V. Anne Edenfield, a Roanoke lawyer who handles guardianship cases, also reviewed Austin’s filings at my request. “It’s a huge breach of fiduciary duty to use a ward’s money to pay a family member,” absent court approval, she said. “You could not get away with that now.” The guardianship would also be legally impossible to obtain without proof of incapacity presented to the court, she added.
Considering that getting the circus to pay up regularly had already proven impossible, though, the ploy was “not so horrible,” Edenfield conceded. She thought that paternalism, more than greed or self-interest, motivated Austin to keep the case going. “My hunch is that Austin was probably a decent guy trying to do good for his client.”
Besides, as she pointed out, the likelihood of an illiterate George and Willie Muse demanding their own pay, given their lack of social capital in the circus hierarchy, was minimal.
From his office in Roanoke, Austin not only managed the paperwork; he also won the court’s authority to seek legal restitution the minute the checks failed to appear—or to clear the bank. Most years, Austin seemed to earn every penny of his monthly fifteen bucks. Adjusted for inflation, in today’s money, his salary from the case typically amounted to about $2,000 annually.
Frugal his entire life, Austin never learned to drive. He raised his family in the side wing of a sweeping Roanoke mansion owned and occupied by his in-laws. In 1925, his father-in-law, Samuel Harris Hoge, had lost the governor’s race to Harry Byrd of the Byrd Machine, which dominated Virginia politics for much of the twentieth century. It was Byrd and his minions who would go on to godfather Virginia’s “massive resistance” scheme to protest the Supreme Court’s 1954 Brown v. Board of Education decision. They forged new state laws and policies in defiance of the decision, and many Virginia schools were closed in an attempt to block desegregation.
Austin was no champion of civil rights, according to his grandson, Robert M. Brown, a lawyer in Newport News, Virginia, who writes crime fiction on the side. Brown preferred his great-grandfather Hoge to his grandfather Austin, who seemed to live under the elder man’s shadow.
Wilbur Austin “lived rent-free, no utilities or anything, in this giant house owned by his father-in-law,” Brown said, along with other members of the extended family. “I can remember they had a black maid, Bessie, a large lady, and she would ring the dinner bell, and everybody would come down from their rooms in coats and ties, and they’d all eat together at this massive dining room table.”
Hoge, Austin’s father-in-law and law partner, was a friendlier and more socially savvy man. When his clients couldn’t pay during the Depression, he accepted homegrown tomatoes as compensation. “It got to the point where he had to ask [his] children to help pay for their own food,” Brown recalled.
But Austin refused to contribute. “So here’s this lawyer, and his law partner is his father-in-law, and my grandfather started ‘taking his meals out,’ if you can believe that,” Brown said.
It was cheaper, Austin believed, to forgo the family meals and eat in diners.
According to his family, Austin was an odd man with no sense of humor. He was super-meticulous with his clients’ money—and quite stingy with his own. After his death, in 1972, the family learned he’d hoarded away money in accounts strategically placed with several different banks.
A Civil War buff with a Mathew Brady photograph collection, Austin was more comfortable among his legal books than with members of his own family, relatives said. He was not warm toward Brown’s mother, Austin’s only child, to the point that Brown’s father later had him banned from their home.
“But as standoffish as he was with his family, he took his profession very seriously,” Brown said. “I can see how he would have done everything within his power to help his client.” Especially a very good old colored woman.
Though he was never revered by his family, on the red-dirt streets of Jordan’s Alley, Wilbur Austin was something of a miracle worker.
It was not so difficult to have people declared mentally incapacitated in the 1930s, a period when Virginia had one of the nation’s most active eugenics programs. Between 1924 and 1979, the state forcibly sterilized more than eight thousand Virginians on the alleged grounds of mental illness, physical deformity, “feeble-mindedness,” or even just homelessness—to keep them from procreating and to protect the “purity of the American race.”
Virginia was in the vanguard of a national movement promoting the so-called science of racial superiority and inferiority. With broad support from the federal government, prominent jurists, research scientists, and the Carnegie Institution, the Eugenics Record Office was initially formed in 1910.
For four decades, the office was the nerve center of a nationwide campaign to promote sterilization for ostensibly inferior genetic stock and strict laws against racial intermarriage, and to quell the immigration of Jews and others from Southern and Eastern Europe, all deemed racially inferior to their whiter-skinned Northern European counterparts.
Such sentiment explains the 1939 appearance of George and Willie’s photo—courtesy of Ringling, of course—in the textbook You and Heredity. As the author notes, clinically, in his caption, “They have white skins (note their throats), pale blue eyes and flaxen hair (the odd effect produced by combing out the woolly strands and letting them grow for exhibition purposes). They also have nystagmus (oscillating eyeballs) and teeth defects, characteristic of many Albinos.”
The author writes, “By sterilization and birth control we might reduce somewhat the proportion of the ‘unfit,’ and by stimulating births in other quarters we might increase somewhat the proportion of the ‘fit.’”
But how to measure who is “fit”? Some eugenics victims were criminals, and some were mentally incapacitated.
Many were just poor.
Nazi war-crimes defendants, on trial in Nuremberg after World War II, claimed that Virginia’s eugenics law had been the model for a German program that sterilized thousands. The practice is sometimes said to have declined in the wake of Nazi revelations, but Lombardo says that in fact Virginia sterilized more people in 1949, ’50, and ’51 than it had in the mid-’30s. “There were lots of reasons for that, but the most important point is that people in Virginia may have been shocked by the Holocaust, but not necessarily by German sterilizations,” he added.
In 2015, finally, the Virginia General Assembly voted to compensate victims who had been involuntarily sterilized at six institutions in the state with payments of $25,000 each. Only eleven were still alive.
Such was the legal backdrop for having two illiterate circus freaks declared “practically imbeciles” in 1936 at the request of their destitute mother and her nervous but well-connected lawyer. The State of Virginia’s definition of an adult imbecile was a person “with the mentality of a normal child six or seven years old; can do little house errands such as washing dishes and dusting.”
The statute does not mention the ability to play music on multiple instruments fabulously well while pretending to be cannibals from Ecuador or ambassadors from Mars.
“In those days it was pretty easy to get this done,” said Lombardo, who wrote the definitive book about Virginia’s role in the eugenics movemen
t, centering on the landmark Supreme Court case Buck v. Bell (1927).
“I’m sure it was all the lawyer’s idea.” Given the money being set aside for the Muse brothers’ retirement, Lombardo said, “the support for the mom and the fee for the lawyer do not seem excessive. Fifteen a month would have been generous, but not unconscionable, for the lawyer.”
Everything went according to Austin’s plan for getting Ringling Brothers to pay up per the new contract signed in 1936. The checks arrived monthly, with Harriett and Austin getting their allotments and the rest piling up in savings accounts for Willie and George. Then in the fall of 1938, Shelton took full advantage of the tumultuous, strike-filled Ringling season by blowing the show, again, without a word to Harriett or Austin.
It took months for me to suss out Austin’s response to that move. First I had to locate all the court files, two of which had been misfiled in an off-site storage facility, far from the Roanoke courthouse. But when the first of the missing documents was finally unearthed, the whole of Candy Shelton’s quarter-century of mistreatment came into focus. So did the enormity of Austin’s influence—and the astonishing persistence of Harriett Muse.
For the remainder of the brothers’ careers, chauffeurs were hired to accompany the nondriving Austin to various locales to bring them home. New contracts had to be renegotiated when the checks coming in from Kortes bounced.
More than once, Austin hired Pinkerton detectives to track the missing brothers down.
More than once, he coached Harriett and her Roanoke relatives to call him if Shelton showed up during their visits home, trying to whisk the brothers away. He ordered them to “refuse to let [Shelton] in the house.” In November 1938, at Austin’s request, Judge Almond even issued a temporary restraining order against Shelton.