The Girl on the Velvet Swing

by Simon Baatz

  Thaw had also threatened the psychiatrists who had given evidence against him. Both Austin Flint and Carlos MacDonald had testified that Thaw suffered from an incurable condition, and their evidence had prolonged his imprisonment. Flint had repeatedly warned that Thaw might try to escape, but his statements had been ignored, and this disaster was the sorry consequence. Both psychiatrists predicted that Thaw would commit a violent act if he remained long at liberty, and it was only a matter of time before he assaulted someone. “He will immediately return to all of the vices to which he was addicted,” MacDonald stated. “The moment that he takes a drink of whisky or a bottle of wine he at once will… single out any one of the many persons whom he believes have wronged him.”8

  No one could say if Thaw intended to make good on his threats, but he had almost certainly left the state. Raymond Kleb, the asylum superintendent, had sent out cars in pursuit, but the trail had quickly gone cold. Frederick Hornbeck, the sheriff of Dutchess County, also raised the alarm, sending telegrams across the state to inform neighboring counties of Thaw’s escape, and John Riley, the state superintendent of prisons, announced a reward of $500 for the recapture of Thaw. The police in Manhattan informed their counterparts in other cities throughout the northeastern states, transmitting a description of Thaw and asking for assistance in his capture.9

  Reports soon arrived that several men, one of whom resembled Harry Thaw, had boarded a launch at Roton Point, a harbor on the Connecticut coast. The launch had carried its passengers out to sea, to a large yacht, Matchgard II, which had then sailed out into Long Island Sound, disappearing from view. A second account claimed that a group of men had stopped at the Hotel Green in Danbury to ask directions to Massachusetts, indicating by their questions that they planned to drive north to Canada. Other witnesses reported seeing Thaw at various towns in New England. Two men, one of whom resembled Thaw, had supposedly stayed the night in a hotel in Lenox. A building contractor at Bellows Falls, a small town in Vermont, claimed that two large cars, each carrying several men, one of whom might have been Thaw, had stopped him to ask for directions to Newport, a town close to the Canadian border.10

  But even if the authorities knew Thaw’s eventual destination, it was not evident that they could easily compel his return to New York State. The jury in the second trial had not convicted him of a crime, determining only that he had been insane at the time of the murder; there were, therefore, no grounds for his extradition. Thaw, by crossing the state line, had put himself beyond the reach of New York, and it was not likely that he would ever return. John McIntyre, a prominent criminal lawyer, cogently expressed the consensus that Thaw had won his liberty and there was nothing anyone could do about it. “Harry K. Thaw is not a fugitive from justice,” McIntyre stated, “nor a person convicted of a crime, nor a person under indictment, nor an escaped convict. Under the law he is simply an insane patient who has escaped from a State hospital. I cannot see any possible ground on which he could be extradited.” Charles Whitman, the district attorney for New York County (Manhattan), was keen to see Thaw back in the asylum, but he also regarded any attempt to recapture him as futile. “The act of acquittal,” Whitman claimed, “abolished any indictment against Thaw in New York county for crime. Consequently he cannot be extradited.”11

  The authorities might have had grounds for Thaw’s extradition if he had committed a crime in order to accomplish his escape; but he had not assaulted any of the guards, and there was no evidence that he had attempted to bribe the hospital staff. Edward Conger, the district attorney for Dutchess County, had already executed a warrant to charge Thaw with conspiracy to leave the asylum. But the State of New York had held Thaw on account of his insanity. Could the authorities legitimately charge him with conspiracy? How could an insane man knowingly participate in a conspiracy?

  Herbert Parker, a former attorney general of Massachusetts, believed that Thaw had done nothing that would permit that state to send him back. “The New York authorities,” Parker stated, “might ask the police here to hold him on some charge such as being a vagrant, pending a request for extradition, but it does not seem to me that such a thing is at all likely. To extradite a man you must accuse him of some crime, and that the New York authorities cannot do.”12

  Thaw’s escape had exposed New York to ridicule. Raymond Kleb, the superintendent of the asylum, bitterly complained that he had done everything possible to prevent an escape, but the courts, by allowing Thaw and other patients to confer privately with their lawyers, had given Thaw the freedom to arrange his escape and to make the payments to the men who had provided the Packard limousine. “It is no secret,” Kleb said, “that Harry Thaw hated me. He knew my attitude toward him, and his lawyers knew how I felt.” The manner of Thaw’s escape, the ease with which it had been accomplished, left little doubt in Kleb’s mind that Thaw had bribed the hospital attendants. “At least one of my employees has not been faithful,” he complained, “and if I find that any money has been spent to make possible this escape I shall go to the full limit of prosecution.”13

  Howard Barnum, the Matteawan gatekeeper, protested his innocence, saying that he had known nothing about the affair—“I stood in the opening…. Suddenly Thaw made a dash past me”—but the sheriff, Frederick Hornbeck, had him arrested nevertheless.14

  The governor of New York, William Sulzer, hinted that his enemies in the state legislature had somehow engineered the escape in order to embarrass his administration and to hasten his downfall. John Riley, the superintendent of prisons, one of Sulzer’s most important allies, had responsibility for oversight of the state asylums, and any accusation of incompetence against Riley would also be an accusation against the governor who had appointed him.15

  Dawn was breaking as Burleigh Kelsea, accompanied by the village constable, Jean Boudreau, approached the inn, a two-story building set back from the main street. He had picked up Thaw’s trail at Beecher Falls, tracking him into Canada as far as Saint-Herménégilde. The local police chief had issued a warrant, sending one of his men with Kelsea to make the arrest.

  Harry Thaw was already awake, standing in the kitchen in his shirtsleeves, watching the innkeeper, Ben Cadieux, prepare breakfast. He stepped back a pace as Kelsea and Boudreau entered, moving toward the door that led to an outside courtyard, but already the constable had seized hold of his wrists.

  “I arrest you, Harry Thaw, as a fugitive from justice.”

  The innkeeper, a frying pan in his hand, stood by the stove, looking on in astonishment, but Thaw had already recovered from his surprise. It was a case of mistaken identity, he told the constable. He had arrested the wrong man.

  “Why, I’m not Thaw,” he exclaimed. “How do you know I am the famous Harry Thaw?”

  “By the photographs,” Boudreau answered, “in the daily newspapers.” He had expected that Thaw might resist arrest; he was surprised that his prisoner remained so calm.

  “You had best beware of arresting,” Thaw retorted. “You know, there is a punishment for false arrest.”

  “We’ll take the chance, all right,” the officer answered, his hand gripping the prisoner’s wrist more tightly.16

  Later that day, Alexis Dupuis, a justice of the peace, listened as a court official, Hector Verret, read the charge against Thaw that he had escaped from the penitentiary at Matteawan. Dupuis remanded the prisoner into custody, ordering that he remain in the county jail in Sherbrooke, a town twenty-three miles to the north. It was a specious indictment; but its purpose was to hold Thaw until immigration inspectors could determine his status. Thaw’s lawyer, William Shurtleff, protested the order, telling the judge that his client had not broken any law in walking away from the asylum, saying that he would petition for a writ of habeas corpus at the earliest opportunity.

  But the government had recently passed legislation that greatly restricted entry into Canada, and few observers believed that Harry Thaw would be able to remain in the country. Several thousand Japanese had entered western Canada
to complete the Grand Trunk Railway, and thousands of eastern Europeans had crossed the Atlantic in search of work in the eastern provinces, and the House of Commons had started to respond accordingly to demands for immigration restriction. The Immigration Act of 1906 had provided the government with the power to exclude several categories of immigrants, including those who were likely to become a public charge, those convicted of a crime, those involved in prostitution, and crucially for Thaw, those who were insane or who had been insane within the previous five years. Subsequent legislation in 1910 had strengthened the discretionary power of the federal government to exclude certain groups of immigrants, including political radicals, and enabled a board of inquiry to deport anyone who had lived in Canada for less than three years. A federal board of inquiry could refuse entry or deport anyone on any credible evidence, and the courts could neither review the decisions of a board nor hear appeals.17

  William Shurtleff had criticized the decision to detain Thaw, but already the Bureau of Immigration had sent inspectors to Sherbrooke to establish a board of inquiry to determine if Thaw could enter Canada. The result seemed inevitable: Thaw, who had been in an insane asylum since 1908, would surely be returned to the United States just as quickly as he had arrived.18

  But would the authorities return him directly to New York or to some other state? Thaw had entered Canada from Vermont, and he could reasonably expect the immigration inspectors to return him there. But New Hampshire could also claim the privilege of receiving Thaw. His arrest had arisen from a complaint by Burleigh Kelsea, the deputy sheriff of Coos County, in New Hampshire. It was also possible that the board of inquiry would determine to return Thaw to his native state, Pennsylvania, a decision that would effectively stymie his extradition back to New York.

  The New York authorities, anxious to recapture Thaw as soon as possible, were quick to assert their claim. Officials from Dutchess County, the jurisdiction in which the Matteawan asylum was located, soon arrived in Canada. Edward Conger, the district attorney, and Frederick Hornbeck, the sheriff, went first to Montreal to meet with government officials, later traveling to Sherbrooke for the immigration hearing. John Riley, the state superintendent of prisons, wired the American consul in Ottawa, asking for his assistance and suggesting that the Canadian government deport Thaw to Rouse’s Point, a border crossing directly south of Montreal.19

  William Shurtleff filed a writ of habeas corpus on August 20, saying that Thaw had not committed any offense in Canada and the arrest, in any case, had been improperly executed. There were, Shurtleff claimed, no grounds for the continued detention of his client.20

  But Shurtleff realized his error almost immediately. The immigration inspectors had already gathered in Sherbrooke for the hearing that would decide Thaw’s fate. The board of inquiry could meet, however, only if Thaw was available to answer questions; and he would not be available if he remained in jail in Sherbrooke.

  It was obviously necessary for Shurtleff to withdraw his petition for a writ of habeas corpus. Thaw would then remain in jail until his trial on the original charge, and the board of inquiry could hold an immigration hearing only when that process had run its course. Thaw needed time, as much time as possible, to marshal his resources, to prepare his case, and his best option was to postpone the immigration hearing far into the future. It would be possible to nullify the writ of habeas corpus by petitioning the court to grant a second writ, a writ of discontinuance.

  On August 27, crowds of sightseers from Sherbrooke and the neighboring villages started to gather outside the courthouse to witness Harry Thaw’s appearance in support of his counsel’s attempt to quash the petition of habeas corpus. Even Thaw was surprised at the enthusiasm of the well-wishers who applauded his short journey from the Sherbrooke jail to the courthouse. Hundreds of Canadians, waving hats and handkerchiefs, lined Winter Street as Thaw, sitting in an open carriage, accompanied by four guards, appeared at the front gate. An immense crowd applauded as Thaw, waving in acknowledgment, passed along Dufferin Avenue, turning onto Wellington Street, finally stopping in front of the courthouse. A squad of constables ran down the steps to shield Thaw from the surge of his supporters who pushed forward, threatening to overwhelm him. The police forced a passageway through the crowd, escorting Thaw through the doors of the courthouse.21

  The judge, Arthur Goblensky, left no doubt in anyone’s mind that he favored Thaw’s petition. The lawyers for New York had no standing in the case, Goblensky announced, and he refused to hear their pleas. Harry Thaw, he continued, had asked to withdraw the writ of habeas corpus, and it would be absurd for the court to compel the writ. “It is the petitioner’s right to have the writ withdrawn,” Goblensky concluded. “No court can force it upon him…. Therefore his request is granted, and he is hereby ordered to be returned to jail.”22

  His supporters pushed forward to shake Thaw’s hand and to congratulate him that he would now return to jail. A crowd of spectators cheered the prisoner as he appeared on the courthouse steps, waving their hats as his guards escorted him back into custody.

  No one was more popular than Harry Thaw. He stood alone against the might of the United States, and every Canadian could applaud his courage. New York had sent its representatives to Sherbrooke, arrogantly assuming that the Canadian courts would bow to its demands, but Thaw had struck back and had emerged victorious.

  Few Canadians knew the details that had previously emerged about Harry Thaw. They knew only that Thaw had killed a man who had raped his wife; but they had heard nothing about the accusations that he had assaulted and whipped young girls. The murder of Stanford White, in the opinion of many Canadians, had been an act of valor, and Thaw’s continued incarceration in Matteawan had been unjust and unfair. He had sought refuge in Canada, but New York continued its persecution by attempting to return him to the asylum. Who would not wish Harry Thaw well in his fight against such injustice?

  The applause for Thaw inside the courtroom and the cheers that greeted his appearance outside shocked the New York lawyers who had traveled to Sherbrooke. They had expected to travel back to New York with Harry Thaw; but now they would return empty-handed. Thaw would not now appear in court again until October, and who could say what might happen in the interim? His attorneys had hinted that he might seek to obtain bail; and then he would be free to slip away again, perhaps to Europe.

  Most of the officials and lawyers from New York, reluctant to spend any more time waiting in Sherbrooke, returned home, but Jerome remained in Canada, seeking to deliver Thaw into the hands of the immigration inspectors, unwilling to leave before he had explored every option. “Thaw reminds me just now of a rat in a blind hole,” Jerome remarked, “outside of which a cat is waiting.” Would Alexis Dupuis, the judge who had remanded Thaw into custody on the original warrant, be willing to release him? The warrant had been faulty—everyone knew that—and Dupuis could act on his own initiative to free Thaw. But Dupuis was reluctant to assume such a burden, and his wife, Sophia Dupuis, was adamant that her husband should not be the cause of Harry Thaw’s downfall. “I am for Thaw. He did the manly act when he shot White,” she said to reporters. “Harry has been hounded by the New Yorkers.… He has been unjustly treated since the time he shot White.” Alexis Dupuis endorsed his wife’s statement, saying that he would allow the judicial process to run its course.23

  Jean Boudreau, the constable who had arrested Thaw at Saint-Herménégilde, had committed him to jail on a charge—“escaping from a penitentiary at Matteawan”—that was flimsy at best. Thaw had escaped from an asylum, not a penitentiary, and in any case, there was no legal statute in Canada that applied to such an act in the United States. It had been a false arrest, and Boudreau, after discussing the matter with Jerome, realized that Thaw could sue him for damages. Boudreau could resolve his dilemma, Jerome suggested slyly, by petitioning for a writ of habeas corpus to release Harry Thaw from jail, and so, later that week, on Saturday, August 30, Boudreau applied for a writ on behalf of the prison
er.

  W. H. McKeown, another attorney for Thaw, denounced Boudreau’s writ as preposterous. Jerome had masterminded the affair, and Boudreau was the stalking horse. “Habeas corpus proceedings,” McKeown stated, “must be instituted by a person acting for the prisoner.” Harry Thaw had no intention, McKeown said, of holding the constable liable for damages, and Boudreau had nothing to fear. “Boudreau is in no danger of being sued by the Thaw family. Fancy a person of Thaw’s wealth trying to recover from a country constable. Boudreau is only a tool and used as such by the New York men.”24

  The judge, Matthew Hutchinson, scheduled the hearing on Boudreau’s petition for September 2, saying that he would hear arguments on the writ in private chambers. There would be no scenes in his courtroom, Hutchinson announced, similar to those that had occurred on Thaw’s previous appearance, and he would allow only the parties involved, along with their lawyers, to attend.25

  But again crowds of sightseers started to converge on Sherbrooke from the neighboring villages. Thaw’s attorneys returned, gathering at the Hôtel Royal to debate their courtroom strategy. The officials from New York, optimistic that this time they would triumph, boarded the train once more for the long journey north. Journalists and reporters from across the northeastern United States and from Canada also appeared, seeking accommodation wherever they could find it.

  Thaw’s supporters held an open-air meeting on the day of the hearing, the speakers denouncing the noxious presence of the New York authorities, one firebrand suggesting that Jerome should be tarred and feathered. Popular enthusiasm for Thaw appeared undiminished, but now, on his second appearance in court, there was an awakened determination on the part of the Canadian authorities that the matter end as quickly as possible. Lomer Gouin, the attorney general of Quebec, signaled the resolve of the provincial government, sending a representative from Quebec City to campaign against Thaw. “Our jails are not public boarding houses,” Aimé Geoffrion declared. “It is the Attorney General’s desire that this matter be settled instanter by the liberation of Mr. Thaw…. If he is not liberated on the writ other means will be taken. Thaw must not be harbored in the Canadian jail.”26