by Simon Baatz
“We will only do what is right,” Drew replied.1
The news of Thaw’s capture sparked a flurry of activity back in New York. Edward Conger, the Dutchess County district attorney, convened a grand jury the next day, September 12, to consider an indictment against Thaw on a charge of conspiracy to escape. Later that evening Conger traveled to the state capital, Albany, to meet with the governor, William Sulzer, to prepare an extradition request to return Thaw to New York. The state attorney general, Thomas Carmody, also met with Conger, telling him that he had asked Travers Jerome to go to New Hampshire to represent the state and to coordinate with the local authorities for Thaw’s return.2
The governor of New Hampshire, Samuel Felker, had already announced that he would grant any extradition request from New York, provided that New York followed the correct procedure. Neither Felker nor the state attorney general, James Tuttle, had any desire to allow Thaw to remain in New Hampshire. “You can rest assured,” Tuttle declared, “that New Hampshire will go the limit to get him back into responsible hands.” William Chandler, a former member of the United States Senate from New Hampshire, urged the governor to act as quickly as possible, saying that, under the federal constitution, the state had an obligation to return Thaw to New York. “He killed a man in New York deliberately,” Chandler exclaimed. There had been nothing improper in the legal proceedings that had followed the murder, nothing that could justify Thaw in claiming sanctuary in another state, and he had no right to remain in New Hampshire. “Does any one seriously say justice was not done him? When he escaped and came to Canada, was he not fleeing from justice?”3
But there could be no extradition of Harry Thaw until a grand jury in New York State had voted for the indictment charging him with conspiracy to escape, and word now reached New Hampshire that the jurors in Dutchess County had refused their consent. There seemed no good reason why the citizens of Dutchess County should burden themselves with the cost of bringing Thaw back from New Hampshire to put him on trial on the charge of conspiracy and to lock him up in the asylum a second time, all at public expense. Thaw’s lawyers would then, no doubt, continue to agitate for his release from the asylum, and the taxpayers would again have to bear the burden of legal battles that could continue for many more years.4
Harry Thaw was jubilant that the grand jury had refused to vote for the indictment. Travers Jerome had pursued him for many years, always expecting the taxpayers to support his vendetta, and finally the citizens of New York had refused their consent. How could New Hampshire now extradite him back to New York if there was no indictment charging him with a crime? “The attempt is so ridiculous, and so utterly absurd,” Thaw declared, speaking of Jerome’s quixotic endeavor to extradite him, “that the people of New York should wash their hands of any further obligation for my maintenance.”5
Once again, just as in Canada, Harry Thaw had captured the public imagination. He had stood alone, against the might of New York State, always refusing to be cowed or intimidated, and he had again triumphed over adversity. He had achieved an almost mythic status as the heroic individual who had succeeded against the odds, and he had emerged victorious. The New Hampshire authorities had moved Thaw to the state capital, Concord, in anticipation of a hearing on extradition, and once again large crowds had appeared, first at Colebrook, then at Littleton, to cheer Thaw on his journey and to demand his release.
He arrived in Concord on September 17, receiving a rapturous reception at the train station, more boisterous than anything he had previously experienced in either Canada or the United States. The mayor, Charles French, called on Thaw at his hotel, welcoming him to Concord and asking the prisoner for his autograph. A crowd of supporters had gathered on Main Street, in front of the hotel, and French invited Thaw to step onto the veranda to say a few words; but Thaw’s attorneys brushed aside the request, saying only that he would give a statement at another time.
There was little to indicate, during Thaw’s first few weeks in Concord, as he waited to learn if he could remain in New Hampshire, that he was a prisoner. He had secured the largest apartment—a suite of rooms on the fifth floor—in the Eagle Hotel, the best hotel in Concord, where he received the local politicians and dignitaries who came to pay him homage. From time to time he would go sightseeing, visiting some landmark in town or making an excursion into the countryside. St. Paul’s School, an elite boarding school, was nearby, and Thaw paid a visit, greeting some of the boys and watching a tennis match. On another occasion Thaw visited the former home of Mary Baker Eddy, the founder of Christian Science, remarking on the attractive appearance of the house but saying nothing on the merits of her theology.6
He had anticipated that the failure to win an indictment in Dutchess County would force New York State to abandon its demand for extradition. But Travers Jerome was not to be denied, and on October 23, six weeks after Thaw first arrived in New Hampshire, Jerome presented an indictment for conspiracy to a grand jury in New York County. Several men, members of a West Side gang, according to Jerome, had conspired with Thaw to effect his escape from Matteawan. They had hatched the plan in a Hell’s Kitchen saloon, and it was therefore legitimate, Jerome argued, to convene a grand jury in Manhattan to hear the indictment.
The situation had been reversed in the twinkling of an eye. Seventeen witnesses testified before the grand jury, and the foreman, George Putnam, one of Jerome’s closest acquaintances, called a vote that afternoon. The jurors needed only a few minutes to decide to support the indictment, and the next day, October 24, Jerome, accompanied by Franklin Kennedy, the deputy attorney general, traveled to Albany to meet with the new governor, Martin Glynn, to obtain the requisition for Thaw’s extradition. That evening Jerome caught the train to New Hampshire, arriving at Concord late at night, and the next morning he presented the extradition request to the governor, Samuel Felker.7
There had never been any doubt that Felker would honor the request. Several petitions asking him to deny extradition had arrived at the state capital, but the United States Constitution, Felker believed, gave him no choice in the matter. The extradition clause in the Constitution could not have been more explicit—“a person… who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up”—and so, on November 8, two weeks after receiving the request, Felker ordered the removal of Thaw back to New York.8
But Thaw’s lawyers, acting in anticipation of Felker’s decision, had already applied to the United States District Court for a writ of habeas corpus; and Thaw would therefore remain in New Hampshire, in the custody of a federal marshal, until the hearing on the writ. Edgar Aldrich, a judge on the District Court, informed the attorneys for both sides that he expected to give a decision on the writ sometime during the following year; but the circumstances of Thaw’s extradition, he stated, had raised important constitutional questions. The Constitution of the United States, Aldrich explained, did stipulate that one state should acquiesce in the extradition of an individual who had absconded from custody in another state; but should extradition apply in all circumstances and under all conditions? Was the demand of one state for the extradition of a fugitive absolute upon another state?
The State of New York had confined Harry Thaw for several years as an insane person, yet the extradition request had been made on an indictment charging Thaw with conspiracy. How, Aldrich wondered, could an insane person conspire to commit a crime? Should extradition take place if the request were patently unreasonable or even capricious? He would give his decision, Aldrich continued, but only in expectation that one side or the other would appeal to the United States Supreme Court for a final and more definitive judgment.9
Aldrich did decide to grant the writ, eventually issuing his verdict in April 1914 and formally releasing Thaw from extradition, but he left undetermined Thaw’s request to be released on bail, thus ensuring that Thaw would remain in Concord in the custody of a federal marshal. “The
constitutional right of extradition,” Aldrich declared, “does not reasonably apply to such a situation as this…. An order will be made sustaining the writ, and that the petitioner be discharged from the extradition process.”10
The attorney general of New York, Thomas Carmody, called a press conference later that same day. The state, he told the journalists, would appeal the decision to the United States Supreme Court. Only an executive power, in this case the governor of New Hampshire, had the authority to decide to extradite a fugitive, and Aldrich, representing the judicial power, had no constitutional right to influence the matter one way or the other. “No court has the power to assume jurisdiction in the case,” Carmody declared. “We will seek to have the appeal determined as soon as possible.”11
The attorneys sat at their desks in silence, waiting for the arrival of the justices, watching the clerks as they prepared for the morning session of the Supreme Court. It had snowed during the night in Washington, D.C., and the temperature outside had dropped almost to freezing; but the senate chamber, heated by four large iron stoves, was uncomfortably warm. The chamber, a large semicircular room in the north wing of the Capitol, was decorated in crimson and gold, but everything seemed slightly threadbare, as if the Treasury had positively refused to spend any more money than necessary on the Supreme Court. The mahogany desks and chairs were nicked and scuffed with age; the carpet, decorated with a pattern of gold stars, had faded almost to oblivion; evidently no one had thought to clean the window drapes in several decades; and even the ink in the inkstands seemed curdled and crusted.
The nine justices, each man accompanied by a clerk, started to appear in the chamber shortly before ten o’clock. Joseph McKenna was the first to arrive, greeting the waiting lawyers with a slight nod of his head; Mahlon Pitney, Joseph Lamar, and Willis Van Devanter, all nominated by William Taft, appeared shortly afterward; and Edward White, the chief justice, entered next, taking a seat at the center of the long table on the dais at the front of the chamber. James McReynolds, nominated earlier that year by Woodrow Wilson, had been on the Supreme Court only since August, less than four months, but already his colleagues despised him for his acerbic temper and mean-spirited disposition, and none of the five justices already in the chamber acknowledged his presence. William Day, one of the more competent and conscientious members of the Court, the author of the recent decision in Weeks v. United States, came next, a few minutes after the hour, followed closely by Charles Evans Hughes, the former governor of New York, an intensely ambitious man who was already plotting to win the Republican nomination for the 1916 presidential election.
Oliver Wendell Holmes was the last to arrive, taking his place on the dais beside his colleagues. He was now seventy-three, the oldest member of the Court, with thick white hair, a luxuriant mustache, and clear blue eyes. There was an austere grandeur about him, an old-fashioned majesty in his appearance, an effect magnified by his morning suit, black waistcoat, and striped trousers.12
Franklin Kennedy, the deputy attorney general for New York, spoke first, saying that a grand jury had voted an indictment to charge Thaw with conspiracy, and on that basis, the governor of New York had requested Thaw’s extradition. There had been nothing improper about the demand, and New Hampshire had indicated its willingness to proceed accordingly. The federal Constitution was unambiguous in mandating the extradition of an individual charged with a crime, and New York should receive Thaw without any further delay.
Later that day, after lunch, the justices listened as Thaw’s lawyers, Philander Knox and William Stone, explained that the circumstances were so singular as to destroy any merit in the request for extradition. Thaw had been acquitted on the charge of murder at his trial in 1908, Knox argued, and he had committed no crime in leaving Matteawan. The asylum was in Dutchess County, and an indictment against Thaw properly belonged only to that county, yet the attorney general had presented the indictment to a grand jury in New York County. Last but not least, the State of New York had declared Thaw to be insane yet claimed nevertheless that he was capable of conspiring with others to escape from the asylum.
The next day, on December 12, the chief justice, Edward White, asked Oliver Wendell Holmes to write the unanimous opinion of the Court in upholding the appeal of New York. Holmes had already written ten decisions that term, more than most of his colleagues, but it was not a complicated case and he readily agreed, saying that he would deliver the opinion before the Court adjourned for the Christmas holiday.13
Harry Thaw, according to the decision of the Supreme Court announced on December 21, had no standing to remain in New Hampshire. Thaw claimed that the indictment against him had no merit, but this assertion did not thereby give him the right to absent himself from the legal process to be followed in the New York courts. “There is no doubt that Thaw is a fugitive from justice,” Holmes wrote. “The Constitution says nothing about habeas corpus in this connection, but peremptorily requires that, upon proper demand, the person charged shall be delivered up…. It is for a New York jury to determine whether, at the moment of the conspiracy, Thaw was insane…. We regard it as too clear for lengthy discussion that Thaw should be delivered up at once.”14
It had been sixteen months since Thaw first entered New Hampshire and finally, finally, the State of New York had him once more in its grasp. A boisterous crowd, almost five hundred strong, gathered at the Concord courthouse at eleven o’clock on a chill January morning to witness the transfer of the prisoner into the custody of New York, loudly cheering their support for Thaw as the Dutchess County sheriff, Frederick Hornbeck, escorted him from the courthouse to the Eagle Hotel to collect his belongings.
That afternoon, more than one thousand men, women, and children waited at Union Station on Commonwealth Avenue, hoping to catch a glimpse of Thaw when he boarded the 2:25 p.m. train to leave Concord. Thaw, escorted by three detectives, arrived just in time to catch the train, and the crowd surged forward, pushing and shoving in an attempt to see the prisoner before he left town. One elderly woman, tears streaming down her face, threw herself at Thaw, clutching at his coat, trying to embrace him before his departure.15
The Boston newspapers had already reported that Thaw would spend several hours in the city before traveling onward to New York, and that afternoon, January 22, Bostonians started to gather at North Station to greet his arrival. The train came into the station shortly before five o’clock, and a dozen constables surrounded Thaw as he stepped onto the platform. The crowd, numbering almost two thousand, surged this way and that, shouting their support for Harry, but the police, forming a circle around the prisoner, drew their clubs and started to advance. Some roughnecks from the South End stood in their way, at the platform entrance, calling on the crowd to free Thaw, but the constables rushed ahead, pummeling the hooligans with their nightsticks, eventually reaching the station exit.16
It was all great fun, and Thaw, the axis around which the world seemed to turn, appeared to enjoy himself enormously. That evening he received visitors at Young’s Hotel on Court Street, greeting a stream of local worthies who came to pay their respects. The former mayor of Boston, John (Honey Fitz) Fitzgerald, came to the hotel to welcome Thaw to the city and to wish him well. Fitzgerald, a garrulous extrovert with a passion for baseball, later chatted with reporters in the hotel lobby, giving them his rendition of a popular song, “Sweet Adeline.”17
The next day, Saturday, January 23, crowds started to gather at South Station in anticipation of Thaw’s departure from the city. It was an injustice, everyone believed, that New York continued to persecute Harry Thaw. He had acted in defense of his wife in killing Stanford White, and it seemed outrageous that New York could again imprison him for such a selfless deed.
No one could predict how many persons might be waiting at the station; no one could tell if there might be an attempt to free the prisoner. It would be possible, the sheriff decided, to take Thaw to New York only on the night train, leaving South Station at one o’clock in the m
orning, at a time when the crowds would have dispersed.18
The station was almost deserted, and no one among the waiting passengers paid any attention when Thaw, accompanied by his entourage—Franklin Kennedy, the deputy attorney general; Frederick Hornbeck, the Dutchess County sheriff; Travers Jerome; and two detectives—arrived at South Station shortly after midnight. The journey, in a special carriage provided by the New Haven Railroad, passed without incident, and six hours later, when the train arrived at Grand Central early on Sunday morning, Hornbeck could take his prisoner to the Tombs without anyone realizing that Harry Thaw was once again in New York.
The warden, John Hanley, assigned the new arrival to a cell on the second tier. That morning Thaw attended services in the prison chapel. He was in good spirits, buoyed by the support he had received from the crowds in Boston, and confident that he would soon win his freedom. “I welcome the opportunity to stand trial here,” Thaw told a reporter from the Evening Telegram. “I have no fear of the result.”19
The State of New York had finally captured Harry Thaw, and he would again appear for trial in the Criminal Courts Building. New York had been able to extradite Thaw from New Hampshire only on account of an indictment for conspiracy, and there was now an obligation on the state to put the prisoner on trial. But according to Thaw’s attorneys, Thaw could not simultaneously be insane and guilty of a criminal act; and if he was found guilty, New York would no longer have any claim to return him to the asylum.
Thaw would serve his sentence in the penitentiary—no more than twelve months, according to the statute—and he would then be a free man. The trial, according to John Stanchfield, lead counsel for the defense, would be more a verdict on Thaw’s mental condition than a judgment on his escape from the asylum. “We expect,” Stanchfield said at the opening of the trial, “to try the question of insanity before this jury. We will show that at the time Thaw left Matteawan he was sane. We will produce witnesses to show that he was sane, believed that he was sane and had a perfect right to go free.”