by Rich Cohen
In regard to our circumstances you have been misinformed. There is not one of his brothers that is in a situation to help defend him, even if he were innocent. As to his wife and child, though strangers to us, they have our warmest sympathies in this trying affair, and I would afford them substantial aid if I were in circumstances to admit of it. For proof of our circumstances, and that myself and brothers are not such as you have been led to believe, I refer you to ALMOND M. PAINE, Judge of Probate, and Dr. E. A. HILL, Postmaster at East Killingly, Conn.
After having thus written my honest feelings in regard to my unnatural brother’s affairs, allow me to subscribe myself,
Gentlemen,
Your obedient servant,
Signed,
ARNOLD HICKS
* * *
—
Meanwhile Albert Hicks had become an antihero in New York. On the eve of the Civil War, the city was as economically stratified as it is today. The wealthiest New Yorkers, the aristocrats and tycoons, had fled lower Manhattan, leaving the old blocks to the indigent immigrant Irish, and headed uptown to Fourth and Fifth avenues, where, in brownstone mansions and town houses, protected by an ever more modern police force, they created an enclave. It was a different world above Fourteenth Street. Downtown, the poorest had taken over areas abandoned by the rich, waterfront wards where wooden mansions dilapidated into rooming houses and elegant streets turned into slums. The middle class, small but growing, was squeezed between. Clerks and merchants, salesmen, physicians, and journalists lived in apartments and houses on Ninth and Tenth streets, on Fourth Avenue and Broadway, in the Fifteenth and Eighteenth Wards in Gramercy Park and Union Square. They dreamed of ascension, the grand move to the upper city, but they feared decline—a slump back into the swamp.
This world, where the climb never ended and there was no limit to the rich and their airs, turned Hicks from psychotic killer to idol. A son of a bitch, yes, but our son of a bitch, a man who defied the traditional authority of cops and millionaires. Its denizens came to invent, then believe the story that Hicks had been shanghaied. If he had not been shanghaied, then he was a monster. But if he’d been kidnapped from a Cherry Street crimp, drugged and stolen away, he could be seen as almost righteous. Put in a situation that seemed to dramatize the situation of so many—forced into the dregs, ordered to work or swim—he had struck back. The shanghai story did not stand up to scrutiny, but who was scrutinizing it? As a result, and again like today, you had two stories: the one being told in the Times, and the one being told on the streets. Those who knew nothing else about Albert Hicks knew that he terrified the shipowners and moneylenders and police. For many, that was enough.
Within a week of his arrest, Hicks was a star. It was the brutality of the murders, the hurried escape, the flight from the cops. It was the whiskey, the oysters and eggs. It was how good he looked in shackles. It was the way he smiled, then turned away. It was his steely calm, scratchy beard, pearl-white teeth, and black eyes. It was his chilling laugh. He had quickly become a household name, analyzed and discussed by the most powerful people in New York. It was the mesmerizing aura of the killer, which is irresistible if that killer is a knockout. A powerful charisma settles around anyone mad enough to live outside the law. Our history of great leaders is paralleled by a history of great psychotics—Jean Lafitte, Al Capone, Louis Lepke. Something about these men remains mysterious, unknowable, and it fascinates. Their lives suggest a different kind of existence, lives without God, lives that are truly and terribly free.
People began showing up at the Tombs, hoping to catch a glimpse of Hicks. If they could just see him, get close, ask a question…Important visitors were allowed in and stood staring through the bars. A common person might slip a coin into the hand of a guard and be taken, late in the day, for a walk along Murderers’ Corridor. Hicks said all the attention made him feel “like a monkey in a cage.”
Some showed up in groups, after drinks, slumming. Others came with a confidant or two. A particularly noteworthy visitor arrived by himself shortly before Hicks was to make his first appearance in court. He asked the warden, Charles Sutton, if he could meet with the infamous prisoner. Pressed on the nature of his business, the tall, stout man handed over his card: P. T. Barnum, Showman. When told of it, Hicks laughed and said, “Oh, Barnum’s on the make. If he’s of a kind to pay, let him come and I’ll make my own bargain.”
The warden led Barnum through a maze of cells to Murderers’ Corridor. Barnum, a doughy man nearing fifty, favored three-piece suits, hooked a fat thumb in his watch pocket, and grinned. Half his head was bald, the other half awash in curly dark hair. He’d been born in Bethel, Connecticut, at the start of the nineteenth century. A product of the old star-lit agrarian world, he’d help create our modern sensibility, which is nothing but spectacle and hokum. He started out as a straight-down-the-middle merchant, but his cynical sense of human nature and wicked sense of moneymaking fun was too developed to be confined to the provinces. He moved to Manhattan in 1835, going first into the theater, then into a more general ballyhoo. He began by producing sidewalk freak shows with bearded ladies and rubber men. At Niblo’s Garden, he caused a stir by selling tickets to see Joice Heth, an old black woman whom Barnum claimed had been a wet-nurse to George Washington, which would have made her 161 years old.
In 1850 Barnum brought the opera singer Jenny Lind, “the Swedish Nightingale,” whom he dubbed “the most famous person in Europe,” to New York to perform at Castle Garden, an auditorium that stood on a North River island where cars currently enter the Brooklyn-Battery Tunnel. Lind did ninety-three shows. By the end of the run, Barnum was himself a superstar. He’d already opened his American Museum, on the corner of Ann Street and Broadway, in a racy neighborhood of taverns and gambling joints, the sort known as wolf traps, deadfalls, or ten percent houses. Across the street stood the most famous of these, Tap Franc, featuring the first roulette wheel in New York, as well as regular tables for faro, blackjack, and a three-dice game called Chuck-a-Luck.
Barnum’s museum was popular with the sort of people New York critics dismissed as yokels or country cousins; that is, the same sort who turned Albert Hicks into an antihero. This mob was fixated by outlandish tales in the penny press. Barnum knew the path to their wallets in the instinctive way of an artist; hence his museum’s never-ending stream of astonishing exhibits: the four-legged chicken and the two-headed calf, the armless wonder, the wild men of Borneo, the Fiji mermaid—a monkey torso attached to the body of a fish—the snake charmer, the albino, the glass eater and the mental marvel, the ossified girl, the man who never smiles, wax replicas of notorious outlaws and western heroes. Barnum staged the wedding of midget Tom Thumb to midget Lavinia Warren in Grace Church. It was covered by the Times—neither on the wedding nor the society page but as a spectacle so outlandish it constituted news.
Barnum’s first museum stood for just twenty-four years, from 1841 to 1865 (it burned down, was rebuilt, then burned again), yet it was one of the incubators of modern culture. It was Barnum who created the Times Square energy, the spectacle and the con that, other than the Bill of Rights, is about all we have left of old America. The movies and vast entertainment zones, Disney World and Las Vegas, Spider-Man, rock ’n’ roll, our current politics—it all grew out of P. T. Barnum’s original insight: believing is seeing.
Barnum stood outside the prison bars, smiling at Hicks. He introduced himself, then got down to business. He wanted to make a plaster mold of Hicks’s face and use it to re-create the killer in wax. “I will display the figure prominently in my museum. It will be seen by millions!”
“Why would you want to do that?”
“Because you are famous. People stand in the street even now, in the rain, hoping to see you but not all can be satisfied,” said Barnum. “We will give them that satisfaction.”
Hicks had no use for money, never would again. But his tho
ughts turned to his wife and child. If he could make a little cash for them, then maybe get an extra something for himself…Terms were quickly reached. For twenty-five dollars cash and two boxes of five-cent cigars, Hicks would allow Barnum to cast his face in plaster.
* * *
—
The trial was held in a new building at 39 Chambers between Centre Street and Broadway, across from City Hall. This was New York as imagined by its first fathers—marble columns, with grand stone steps leading up from the street. The U.S. Circuit Court was on the second floor, Judge Smalley presiding. He was known to be a clear-eyed commonsensical judge, fast but fair. He knew all men of note in the legal community—it was still a small city. Just a few restaurants, taverns, clubs. Everything was personal; everyone was conflicted.
Albert Hicks would be prosecuted by a team of lawyers handpicked by U.S. District Attorney James I. Roosevelt, who’d previously served as a member of the U.S. Congress and as a New York State Supreme Court justice. Roosevelt, the grandfather of the future president Teddy Roosevelt, is referred to in accounts as ex-Judge Roosevelt. He selected attorney James Dwight to try the case. Dwight bursts from court transcripts like a lawyer in a Movie of the Week, smart and moralistic, partial to dramatic turns of phrase and the sort of courtroom comedy that catches you by surprise. The case must have been important to Dwight—only a few times in life, if ever, will you get a chance to impress your sensibility on your city.
It was Dwight who explained why the government was charging Hicks with piracy instead of murder. To prove murder you needed a body or, in this case, three bodies. Though the police were still combing the beaches, the accused had apparently made sure no bodies would ever be found. The best they could do with a standard charge was robbery, which would mean—what?—ten years in Sing Sing? Twenty? For a triple murder? Intolerable. Piracy, though based on a somewhat obscure federal statute passed by Congress in 1820, was an infinitely better charge.
Dwight read the statute to the court: “If any person shall upon the high seas, or in any open roadstead, or in any haven, basin or bay, or in any river where the sea ebbs and flows, commit any robbery in, or upon any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate; and being thereof convicted before the Circuit Court of the United States for the District into which he shall be brought, or in which he shall be found, shall suffer death.”
In other words, if you rob on the water, you are a pirate. If you are a pirate, you shall suffer the traditional pirate punishment—hanging by the neck till dead.
Defense Attorney Sayles argued against the applicability of this law. Piracy meant the open sea, Sayles told the judge, beyond Sandy Hook, where the coastal shelf falls away and the water goes from sky blue to black. But the E. A. Johnson was found in the Lower Bay, a mile from Staten Island, well within the jurisdiction of Harbor Patrol, that is, New York City. This entire case, explained Sayles, was as local as Delmonico’s or Trinity Church. Piracy? Just how far could you stretch a statute to reach a desired result? If the government wanted to put his client to death, it had to prove murder.
Judge Smalley considered this argument, which, on its face, seemed reasonable, then rejected it. He was fixed on the larger duty of the court, which was to uphold societal stability and bring justice. He understood legalism but followed common sense. Just look at the defendant, with the sneer and the stubble, the rope-scarred hands and crow-black eyes. What did he look like? A pirate. So that was how he would be tried.
The defense then asked that the trial be moved to a different jurisdiction, far from the coast. In a case that had become a public obsession, flooding the newspapers with rumor and falsehood, how could enough unbiased men possibly be found to form a jury?
Smalley rejected this argument, too. The idea of an untainted jury, a perfect group of wise but unknowing men, was fantasy, he explained. Maybe it existed in the next world, but in this world, with its dirty port and its rough sea, there was no such thing as a perfect arbiter. That was why we had twelve, that was why we called for belief beyond a reasonable doubt. That was why the verdict had to be unanimous.
“Judge SMALLEY, we are glad to see, has pronounced against the attempt to introduce into the Federal Courts, in the Hicks case, the absurd rule, so stringently enforced in our State Courts, that the mere fact of a man’s having read the comments or reports of a newspaper, on the commission of a crime, shall disqualify him for acting as a juryman on the trial,” the Times editorialized on May 16, 1860.
That such a doctrine should have ever secured recognition in the United States, the country of newspapers par excellence, is, perhaps, one of the oddest and most unaccountable of the oddities of Anglo-Saxon law. It would be natural and reasonable enough if promulgated in Austria or Russia, where newspapers rank as unavoidable nuisances, the general use of which it is one of the first duties of the Government to discourage. But in America every man reads the newspapers who knows how to read at all, or who is fit to take part in any judicial proceeding. When a great crime is committed which causes a general sensation, everybody reads the report of it—if he knows how to read; and if he does not know how, he is not fit to sit on a jury. So that the question with which every man on the panel is assailed in the State Courts, on a criminal trial, by the prisoner’s counsel, as to whether he has read the newspaper reports touching the prisoner and his offence, is in reality equivalent to asking him: “Are you so stupid and ignorant that, living in New-York, you cannot read or understand a daily paper? Or if you read one, are you such a piece of eccentricity, as without any motive in the world, carefully to avoid perusing any allusion it contains to a subject of which every man and woman around you is talking?”
Jury selection took two days. The names of the jurors reflect the city as it was before the great immigrant flood filled its directories with Russian, Polish, Slavic, Chinese, Indian, and Spanish names. The fact that no women served—they would not get the vote for another sixty years—goes without saying. This was a study in Anglo-Saxon (English and Scottish), white males:
Bernard McElroy
Owen Foley
John Coulter
Geo. W. Jackson
Jas. C. Rhodes
Isaac Jerome
Andrew Brady
Robert W. Allen
John Farrell
James N. Fuller
John McCalvey
Benjamin Sherman
The trial began on Monday, May 14, 1860. People stood in the street hoping to catch a glimpse of Hicks as he was led up the courthouse steps between Marshal Rynders and a deputy. The prisoner wore heavy irons to court but did not seem especially troubled or weighted down. He was, according to the New York Post, “respectably dressed in black cloth pantaloons, dark colored vest and black cloth sack coat. A heavy blue scarf was around his neck, hiding his collar. His long black hair was neatly brushed back, and his general appearance evidenced considerable attention to his toilette. In conversation Johnson [aka Hicks] is rather pleasing than otherwise, evincing both intelligence and shrewdness. His manner is much more refined than the published reports would lead one to suppose.”
Judge Smalley arrived at 11:15 A.M. The irons had been removed from Hicks, who stood when the judge entered.
Asked to state his name, the prisoner spoke softly: “My name is William Johnson. My right name is Albert W. Hicks.”
“Have you anything to say in regard to this charge?”
“No, sir.”
“The prisoner then sat down,” according to the Post. “He appeared flushed, and his brows were closely knitted.”
The prosecutor addressed the jury. He promised not to bore them with a traditional opening statement. The details of this case had been so carefully chronicled, he explained, and the facts were so well known, that it would be patronizing to pretend that you knew nothing. We all understand what this
man is charged with and what sort of outrage we believe he has committed. This is your city. We simply ask that you do what must be done.
Dwight summarized the facts nevertheless, in broad outline: the discovery of the E. A. Johnson, the state of its cabin and decks, the missing money, the vanished men. “The bowsprit of the vessel was broken off, and its rigging trailing in the water,” the prosecutor said. “The sails were down, and the boom of the vessel, which had been set, was over the side of the vessel. There was no human being found on the vessel, and no light. Forward of the mast appeared a large pool of blood which had run down to some cordage and sticks at the back of the mast, and also down the side of the vessel into the sea. This was just aft the forecastle hatch, on which, or near which, was found some hair—a lock of hair.”
The prosecutor listed the stolen items: $150 in gold and silver coins, $26 in paper currency, a daguerreotype of a young woman, a pair of pantaloons, a felt hat, a gold ring, a silver watch that belonged to Captain Burr, a sea compass. He named the victims, lingered on details of their shortened lives, what they would never do, the ripple effect of their deaths on those who loved them. He explained the particulars of the charge, why it was not necessary to prove Hicks had done the killing to reach a guilty verdict on piracy. “Each little item of evidence is of no particular strength,” he went on, “of no decision in itself, but only [matters in part of] forming a strong chain, a perfect chain, that, as claimed by the government, fixing without question and without doubt the guilt of this offence [piracy] on the prisoner.”
