Bit Players in History, Part II

My last posting was about what I termed "Bit Players in History"–people who, though nearly forgotten now, led lives that were often so packed with incident as to be mind-boggling, and whose experiences add richness and texture to our understanding of the past. Yes, it’s important to study the lives of Presidents and generals and the like–and it’s altogether fitting and proper that such people get the lion’s share of attention in history courses (or at least, they used to, before "dead white males" fell out of fashion). But for me the real thrill is coming across someone standing in the shadows–someone like either of the two women who are the main characters in A More Obedient Wife–and doing my bit to shed a little light on them. And it’s almost as much of a thrill to read or hear about the work of some other writer who’s done that as it is to do the research and writing myself.

I’ve recently come across several people, largely by happenstance, who fall into that category. And when two or three of us get together, regaling each other with tales of our beloved obscurities, let me tell you, we can have a real blast. The most recent occasion was just a few nights ago, when I found myself (somewhat reluctantly, I confess) at a formal dinner, with strangers to my left and right with whom I would be expected to make polite conversation for an hour or so. The lady on my right turned out to be quite pleasant, but after a while–according to protocol–I turned my attention to the gentleman on my left. After a few minutes of chit-chat, during which I must have mentioned the fact that I had written a novel set in the 1790s, my dinner partner revealed that he was working on a biography of someone named Edmond Charles Genet.

"Not Citizen Genet!" I exclaimed, no doubt much to his surprise–and delight.

Genet was one of the more intriguing obscure figures I’d come across while researching the 1790s, when he served–briefly–as the ambassador to the United States from revolutionary France. (I give him a brief offstage cameo in A More Obedient Wife.) Handsome and arrogant, Genet made a triumphal march up the East Coast from Charleston, where he landed in 1793, to the capital in Philadelphia, all the while brazenly urging Americans to become privateers for the French in violation of the Washington administration’s policy of neutrality. Even the ardent Francophile Thomas Jefferson was taken aback by Genet’s antics. President Washington, understandably, wanted to ship him back to France, but he was appalled to discover that–because of a recent regime change–Genet wasn’t exactly going to be welcomed home with open arms. In fact, he was going to face the guillotine. So Washington let him linger on in the United States, where he married the daughter of the governor of New York and eventually became a respectable old gentleman. At least, I think that’s what happened–my knowledge gets hazy after the 1790's– but those of you who have had your interest piqued can look forward to reading the biography by my dinner partner, who goes by the dashing name of Roland Flamini. (Caution: Mr. Flamini says that Genet kept ALL his papers, including things like his laundry bills, so it may take him a while to get through all that and actually complete the biography.)

Needless to say, Mr. Flamini and I found ourselves so deeply engaged in conversation that we weren’t particularly interested in turning back to our other dinner partners, pleasant as they were. We were about the last people to leave the dining room–Mr. Flamini by this time equipped with a promotional bookmark for A More Obedient Wife. (Yes, I even take them to formal dinners; I’ve become quite shameless.)

Earlier that week, at a different formal dinner (this was an unusual week–I don’t usually go to this many formal events!), I was seated near another author who appreciates the role of bit players in history–James L. Swanson, who wrote Manhunt: The 12-Day Chase for Lincoln’s Killer. I bought the book primarily because I knew I would be meeting Mr. Swanson, and it seemed only polite to dip into it, but I soon found I had a hard time putting it down. What’s amazing is that Swanson manages to craft such a gripping narrative from a story every American basically knows. And part of the way he does that is to focus not only on John Wilkes Booth–fascinating as he is–but also on the many obscure but intriguing figures who played some role in the tale: Booth’s adoring sister, married to an uncaring man who apparently was interested only in her famous last name; the canny outdoorsman, a Confederate sympathizer, who provided the boat that enabled Booth to get across the river from Maryland into Virginia (it wasn’t his fault Booth went the wrong way!); and the semi-deluded marksman who fired the shot that finally killed the assassin. As Swanson says in an interview included in the paperback version of Manhunt, "one of the great pleasures of researching the book was to learn much more about the characters who are often quickly passed over as fringe characters or unimportant players. But once you come to know them, they become fascinating and propel Manhunt forward, adding so much character and color to the book." At dinner, I communed briefly with Mr. Swanson over our mutual fascination with these "fringe characters," and then–I confess–I presented him with one of my bookmarks.

(What I forgot to mention to Mr. Swanson is that two of these fringe characters, Henry Rathbone and Clara Harris, show up in a terrific historical novel by Thomas Mallon, Henry and Clara. They were an engaged couple who happened to accompany President and Mrs. Lincoln to their box in Ford’s Theatre that fateful night–and suffice it to say that the assassination wasn’t actually the most dramatic event in their life together!)

A more informal, but no less enjoyable, encounter occurred when I had lunch last week with a couple of fellow documentary editors, Mary Jeske and Sam Brainerd, who work on the Charles Carroll of Carrollton Papers–or more precisely, on the three forthcoming volumes to be titled A Patriarch in the Early Republic: Charles Carroll of Carrollton’s Papers, 1782-1832. I had contacted them because I thought they might have some information that would be of use to me in researching my next novel, which is about two women who were friends with some of Carroll’s granddaughters, but we ended up talking mostly about A More Obedient Wife. Mary and Sam showed a level of interest that perhaps only other documentary editors are capable of–and clearly, they themselves were happily immersed in the details of the lives of Carroll (who they refer to, endearingly, as "Charley") and his extended family. I only regret that I didn’t find out more about Charley and his relatives, many of whom clearly had fascinating lives–there were allusions to which of his daughters had married for love and which had been courted for her money. We’ll just have to schedule another lunch!

I’m also currently reading a novel that takes a similar approach to history: Nancy Horan’s Loving Frank, which tells the story of the scandalous affair between Frank Lloyd Wright and Mamah Borthwick Cheney–and does so through the eyes, not of the celebrated architect, but of the basically unknown Cheney, who turns out (you shouldn’t be surprised to hear this at this point) to have been a pretty interesting person herself.

The only risk in writing about bit players in history is that you start to feel a proprietary interest in them. It’s okay if people mention them in passing–preferably making mistakes about them that you can easily spot–but if someone else actually dwells on them, especially before you’ve had a chance to write about them yourself, it can make you uneasy: wait a minute, that’s MY obscure historical figure! (Well, okay, it makes ME uneasy–I don’t really know if others feel this way.) So it was with something less than pure delight that I discovered recently that one of the two women I’m writing about in my next novel–the one who was a 19^th-century celebrity but is largely forgotten now–gets several pages of attention in Cokie Roberts’ new book, Ladies of Liberty (itself largely a compendium of history’s bit players–all of them, not coincidentally, women). Roberts even cites some sources I was unaware of, although I’m certainly going to do my best to get hold of them now. I was relieved, however, to find that Roberts made at least one mistake that I easily caught. And thank God she seems to be completely unaware of the existence of the other woman I’m writing about–who is, I’m happy to say, even more obscure, but of course no less interesting.

Anyone who has delved into the minutiae of the life of an obscure historical figure–combing through letters, diaries, and whatever other primary sources can be dug up–has probably had the following experience: you’re reading a book in which the object of your research (and, perhaps, affection) is mentioned in passing, and you detect a glaring error. Glaring, that is, to you, but to no one else, because you know way more about this particular historical figure than anyone else does.

For example, the leading biography of Justice James Wilson–one of the two Supreme Court Justices who figure in A More Obedient Wife–offhandedly asserts that Wilson’s wife Hannah was a Quaker. I’ve come across at least two or three more recent secondary sources that, apparently relying on this 1956 biography, repeat this statement as established fact. But, after spending years trying to find out everything I could about Hannah Wilson, nowhere did I come across a shred of evidence that she was a Quaker. (My hunch is that Wilson’s biographer was misled by a reference to Hannah’s attending church at "Dr. Thatcher’s meeting." He may have assumed that the term "meeting" referred to a Quaker meeting, when in fact it was much more likely that a New Englander like Hannah would be a Congregationalist–a denomination that also, at the time, called its churches "meetings.")

When I come across a mistake like this, part of me just gloats: nyah-nyah, I chant to myself, I know better than you do. And the other part is filled with righteous indignation: how could anyone who calls himself or herself a historian be so sloppy?

In researching my next novel, I’ve had a lot more secondary sources to deal with than I did with A More Obedient Wife. That’s because one of the two women I plan to write about (yes, it looks like once again I’ll be writing about two women from the past) was quite a celebrity in the 19^th century, although she’s almost completely forgotten now. Let’s just call her Betsy. Quite a few books were written about Betsy–as well as a play or two and a silent movie. Most of these books straddle the line between fact and fiction, without seeming to bother much about which category they fall into. In some ways this abundance of information makes things easier, relieving me of the burden of reconstructing Betsy’s life from scratch. But in some ways it makes things harder: there’s been so much embellishment of the historical record that it’s a real challenge to separate fact from speculation (which I want to do so that, ultimately, I can insert my own speculation).

One of the more amusing embellishments I’ve come across has to do with the second, even more obscure woman I’m writing about. Let’s just call her Mrs. Anderson. In 1879, a collection of Betsy's correspondence was published that included a letter written when she was a young bride. She had gone on a trip to Europe and had recently given birth there. "Mrs. Anderson is extremely anxious to return to America," Betsy wrote to her father back in the United States, "and, as she will be no material loss, she takes her departure in the `Robert.’" In a footnote, this Mrs. Anderson is described as Betsy’s "companion."

The next time, as far as I know, that a reference to Mrs. Anderson appears, it’s in a historical novel about Betsy that was published in 1928. Mrs. Anderson is described as "a pleasant woman fitted by inclination and experience to preside at births." Nine years later, when another historical novel is published, she has become "a widow and an old acquaintance of the family." The author elaborates: "She was one of those women who are invariably called in when relatives and friends are ill, or dying, or in childbirth. She was helpful, experienced, had few or no private interests, and was invaluable in a sickroom..."  By 1960, in a "fictionalized biography" of Betsy, Mrs. Anderson has lost her "pleasantness;" she is described as a "family friend" who is "sour" and "efficient."

From Betsy’s airy dismissal of her–"she will be no material loss"–you might well think these descriptions of Mrs. Anderson (or at least some of them) were accurate. In fact, as I’ve discovered, Mrs. Anderson was a headstrong 25-year-old whose husband had abandoned her and their infant child a few years before the trip to Europe with Betsy. The two women were near contemporaries and close friends, and most likely the only experience Mrs. Anderson had of childbirth was the delivery of her own daughter. Mrs. Anderson’s letters show her to be a passionate and highly educated woman whose own life was perhaps even more dramatic than that of the celebrated Betsy: she became editor of a magazine for several years in the early 19^th century, while still in her twenties–during which time she engaged in spirited battles with her readers, under the pseudonym "Beatrice Ironside." And when she fell in love with an aristocratic but impoverished French architect fifteen years her senior, she scoffed at the gossips, tracked down her errant first husband herself, and sued him for divorce on the grounds of adultery.

There’s more to say about Mrs. Anderson, but I’m saving it for my next novel. My points here are, first, that bit players in history often prove to have had pretty fascinating lives. And second, that writers (whether historians or historical novelists) often train their focus on the bigger fish and miss out on these interesting little minnows–sometimes providing them with biographical details that have no basis in reality.

On the other hand, if you don’t focus on something, you’ll end up with a big blur–so I don’t mean to be harsh on those who have focused on the bigger fish. Although my first reaction at discovering a mistake like this is a mixture of superiority and indignation, my second is a little shiver of sympathy: no doubt I’ve made the same kinds of mistakes about the bit players I’m not focusing on. And maybe someday a reader will come along and shake her head at me, thinking: how could she be so sloppy? If that reader goes on to unearth some intriguing facts about a person I’ve glossed over, I’ll be the first to cheer.

Having recently moved my mother into assisted living, I’ve been musing a bit on how our society has treated its older members in the past. (I can tell you right off the bat that one thing has changed since the 18^th century: "old" was not considered a pejorative term, necessitating euphemisms like "older" or "senior citizen." People were able to refer to someone as "the old lady" without it being taken as an insult.)

Of course, in the past there weren’t nearly as many old people around. In the 18^th century, life expectancy was considerably shorter. Looking at the four historical figures who became characters in A More Obedient Wife, for example, only one–Hannah Iredell–lived to what we would today consider an advanced age, 79. Of the others, James Wilson died at 56, James Iredell at 48, and Hannah Wilson at only 34. And the more you know about 18^th-century medicine, the more surprising it becomes that anyone managed to survive to adulthood, let alone old age.

Obviously, though, a lucky few made it to their dotage. Those of us looking back from the youth-obsessed 21^st century might assume that 200 years ago the elderly got more respect. Instead of being shunted off to an old people’s ghetto (which, like it or not, is the essential characteristic of even the most luxurious assisted living facility), they got to remain in the bosom of their families, cherished and lovingly cared for–like John and Abigail Adams, as depicted in the recent HBO mini-series. Yes, a couple of their kids had gone to tragic premature deaths, and John sat around reliving the ignominies of his disastrous presidency, but at least they died at home at "Peacefield," surrounded by what was left of their progeny.

But needless to say, it didn’t always work out like that. What if you had no progeny to take care of you? That was the case for poor Justice William Cushing–the only Justice during the 1790s who had no children. Already 57 when he was appointed to the bench in 1789, Cushing, like the other Justices, had to slog around the country on horseback in the freezing depths of winter and the blazing heat of summer, holding circuit courts–an aspect of the job that prompted many younger men to resign. ("We are traveling machines," his wife Hannah once wrote to a relative.) In early 1796, President Washington, desperate for a new Chief Justice, nominated Cushing–despite rumors of the Justice’s frailty and possible senility. As if to confirm those rumors, Cushing begged off, pleading ill health. Surely the poor man would have preferred to just resign from the Court and stay home. By 1800, Thomas B. Adams was writing to his mother, Abigail, "Judge Cushing will not be likely to retain his place much longer, as his age & infirmities must bear him down..." But instead he remained on the bench for another 10 years, ultimately dying in office at the age of 78. Why did he hang on? Possibly because there were no pensions for Supreme Court Justices in those days–not even Social Security!–and Cushing had no one else to support him.

And even if you did have progeny, they didn’t always want you in the bosom of their family--even in the 18^th-century. The family of Justice James Iredell is a case in point. As readers of A More Obedient Wife know, Justice Iredell’s mother arrived from England in September 1790 to be reunited with her eldest son, who had left England 22 years before and hadn’t seen his mother since. Iredell’s brother Arthur, still in England, had shipped her off with predictions of a joyous mother-and-child reunion, along with some vague words about how old Mrs. Iredell’s life in England was not what it should have been.

But it turned out that Arthur wasn’t being entirely candid: his mother had become a hopeless and embarrassing alcoholic, and he was desperate to be rid of her. When James and his wife Hannah discovered that Mrs. Iredell was not at all the mother James remembered, they went through some paroxysms of grief and recrimination (directed, justifiably, at Arthur), after which James and Hannah decided they too wanted to get rid of the old lady. A little over a year after she arrived, they farmed her out to someone in "the Country" near Philadelphia, where they were living. This person would, for a fee, take care of her needs–an 18^th-century version of assisted living, if you will. (For her part, old Mrs. Iredell was apparently none too happy living with James and Hannah; shortly before they moved her out to the country, she wrote to Arthur that she wanted to go to Ireland to live with her sister–a plan which, Arthur said, she had apparently conceived when she "was by no Means in a proper State of Mind, at the House, as she calls it, of a friend," and which he termed "the height of Folly.")

We don’t have much information about the person or persons to whom old Mrs. Iredell was entrusted–in my novel I make them a German farmer and his wife, although I’ve recently discovered that James Iredell’s biographer, Willlis Whichard, says the caretaker was named Benjamin Duggan. In any event, after an initial period of adjustment, the old lady was apparently content. Whether she got back on the wagon is unclear, but there are no more references to her drinking problem. But in 1793, the Iredells decided to move from Philadelphia back to their hometown of Edenton, N.C.–and they didn’t bring Grandma along. This has always puzzled me. James Iredell would continue to make the arduous journey to Philadelphia for sittings of the Supreme Court at least twice a year, and would always visit his mother on those occasions, but old Mrs. Iredell would never again see the rest of the family–including her three grandchildren. Not to mention that she had another son, Tom, who had lived in Edenton since 1784, and whom she apparently never saw at all during the years they were both on this side of the Atlantic.

Even if the Iredells didn’t want Mrs. Iredell living with them in Edenton, you would think they might have found another person to take care of her in "the Country" somewhere nearby. Perhaps things were sufficiently acrimonious that they preferred to keep "the old lady" at a distance (that’s more or less what I’ve imagined in the novel). Or perhaps they felt the journey would have been too difficult for her. Maybe she was happy where she was and didn’t want to come along. In any case, she remained with Mr. Duggan as she became progressively enfeebled and died in 1802, outliving her son James by three years.

At least the Iredells (despite the fact that they were always scrounging for money) could afford to farm Mrs. Iredell out. Poorer families presumably had to choose between living lives of stress and tension with a difficult elderly parent (not to mention the stress the parent might have suffered) and inhumanely abandoning that parent to the streets. Even as recently as 50 or 60 years ago, at least some families faced a similar dilemma. A few years ago in a writing workshop I was teaching, a woman in her seventies wrote about her two grandmothers, both of whom lived with her family throughout her adolescence and made her mother’s life hell. Their first question in the morning, for example, would be what was for dinner–and then they would proceed to complain about whatever it was. But, in the days before assisted living, the family wouldn’t put them in "a home"–not as bad as being thrown out into the street, but still something that they considered too unpleasant for decent people to resort to.

So I guess assisted living–despite the fact that, as my mother keeps pointing out, all the other people there are old–is a development to be applauded, at least for those who can afford it. There are Scrabble games and exercise classes and dances with live bands, among other amenities that Mr. Duggan undoubtedly failed to provide to old Mrs. Iredell. My mother, after a period of adjustment, seems reasonably content–like Mrs. Iredell–and she says that being surrounded by all those people using canes and walkers actually makes her feel like a teenager. Maybe she’s not quite in the bosom of her family, but she’s close–only a mile or so away. And frankly, if we were all in the same house we would inevitably get on each other’s nerves, even though my mother is neither demanding nor an alcoholic. (Even at Peacefield, the Adamses must have had their tense moments with their adult children.)

It’s not perfect, but then, getting old has never been a picnic. It would be nice to think that 200 years from now, people will have come up with some better system–or ideally, in about 30 years, when I’ll be ready for assisted living–but at the moment I find it hard to imagine one.

Fiction, Nonfiction, and the Standards of the Past (March 17, 2008)

In recent weeks two more "memoirs" have been exposed as fiction: one by a woman who claimed to have been raised as a mixed-race foster child in a gang-infested LA ghetto but who actually grew up in a white middle-class family and attended private school; the other by a woman who claimed to have been a Jewish Holocaust survivor nurtured by friendly wolves while hiding in the forest but who turns out to have been a Christian who spent the war in her native Belgium. And predictably, the op-ed pages have been filled with denunciations of such shenanigans, just as they were after the revelation that James Frey’s "memoir" A Million Little Pieces was in large part a fabrication.

I’m as outraged as the next person by these frauds–probably more so. In fact, those who know me tend to think I go overboard in denouncing writers who invent things and then slap the lucrative "memoir" label on them. (James Frey originally tried to peddle his book as fiction, but couldn’t find a publisher.) Every time I teach an essay-writing workshop I go into a spiel about the difficulties of writing about our memories–recalling conversations that took place in our childhoods, setting down details that might or might not be accurate. Personal essays and memoirs, I’ve said, can’t be held to journalistic standards of integrity–you don’t need to interview everyone who was at that Thanksgiving dinner in 1973 before you write your own version of it–but what is essential is that you be faithful to your own truth, that you don’t deliberately invent, just to make it a better story. Some years I’ve almost omitted this little speech, thinking it was perhaps unnecessary, but then something happens that convinces me to keep saying it: the revelations about Frey or someone else, or a workshop participant who, when told that her ending really makes the essay, says casually, "Well actually, that part didn’t really happen."

But taking the historical perspective, as I’m apt to do, I also know that blurrings of the lines between fact and fiction are nothing new. Lately I’ve been reading books published in the 19^th and early 20^th century about a woman who will be the subject of my next novel. Although almost completely forgotten today, this woman was quite a celebrity in the 19^th century, and biographies, "fictionalized biographies," and historical novels were written about her–without much distinction between the genres. The one I just finished was particularly frustrating for me. It appears to be labeled a novel (this is apparent only from the dedication), but uses real names and includes excerpts from actual letters–just as A More Obedient Wife does, and as I expect my next novel to do. But the casual reader wouldn’t know that the excerpts–some of which appear as dialogue or internal monologue–are taken from real letters; I only know because I happen to have read some of the originals. And when the author appears to be quoting from other letters–ones I haven’t read–I have no idea whether he’s really quoting or just inventing. (In A More Obedient Wife, all quotations from actual documents appear in italics, in case readers want to know what’s historically documented and what’s not.)

I find this frustrating but not reprehensible–after all, the book is labeled (if you look closely) a novel, so there’s no requirement that the author reveal what’s true and what’s not. (And many modern authors of historical novels, including one I’ve just finished, don’t bother to try to reveal this either.) But this casual attitude to the line between truth and invention hasn’t been limited to works that hold themselves out as fiction. The leading biography of one of the main figures in A More Obedient Wife, James Wilson–a biography published in 1956–is full of little details that can’t possibly be verified, things along the lines of "As he considered the problem, his glasses slipped down his nose ..." Now, it’s true that there’s a letter somewhere that says that James Wilson’s glasses often slipped down his nose; but it’s also true that the author of the biography couldn’t possibly know that Wilson’s glasses were slipping down his nose at the particular moment he’s writing about.

Some people would say this sort of invention is trivial, and that the loss of historical accuracy is outweighed by the vividness these kinds of details impart–whether they’re true or not. I’m willing to grant that it’s a matter of taste: I simply find it distracting, because it prompts me to ask how the author could possibly know such a thing. And if he’s inventing that detail, what else might he have taken liberties with? (I’ll leave aside the fact that Wilson’s biographer also simply got some things wrong–such as his assertion that Wilson’s wife Hannah was a Quaker, an assertion that has been repeated in secondary source after secondary source but for which I can find absolutely no evidence.)

But the other, more serious, problem with this kind of carelessness with details is that it tends to metastasize. If you can add a detail here and there to impart vividness, why not a whole anecdote? The first biography of George Washington, written by Mason Locke Weems and published in1800, included the charming story about the future President cutting down a cherry tree as a boy and then confessing to the deed ("I cannot tell a lie..."). Weems invented the story out of whole cloth, but generations of schoolchildren have been taught it as historical truth. To take a somewhat more recent example, the now obsolete Dictionary of American Biography, or DAB–which I used to enjoy browsing through when I was working on The Documentary History of the Supreme Court, and which was published in the 1920s–was full of anecdotes about its subjects that added lots of color but were completely unverifiable. Apparently, the scholarly editors back then didn’t particularly care.

Today’s op-ed writers and others generally bemoan the problem of line-blurring, or outright lying, as something modern, and somehow connected to the unmediated writings (such as this one!) that fly through the Internet without benefit of fact-checking or editing. While there’s undoubtedly some truth to that (witness the unfounded rumors about Barack Obama’s being a Muslim), it’s also true that the Internet helps to uncover lies and inaccuracies. Ideally, someone else will come along and blow the whistle–this is the theory behind the online encyclopedia Wikipedia, and generally it seems to work. And taking the long view, it certainly seems to me that standards of historical accuracy have been rising, not falling. I’m sure that the editors of the successor to the DAB, American National Biography, wouldn’t allow all those colorful but unverifiable anecdotes in the DAB to get by them–and the scholars who wrote the ANB entries (myself among them) wouldn’t even think of trying to include them.

I realize that my examples so far haven’t included any drawn from the genre of memoir, but I’m sure they exist. I can think of one off the top of my head: Lillian Hellman’s Pentimento, which told the story–later made into the movie Julia–of Hellman’s heroic anti-fascist friend. As it turned out, Hellman had no such friend. And I’m sure that there have been many other memoirs in which authors exaggerated or invented elements of their lives but which were never exposed because it was impossible to verify or disprove the claims–or because no one thought to question them. Memoirists–for the very reasons I give my essay-writing students–have generally been allowed more latitude with facts than have historians and journalists. (Is it worse to lie about someone else’s life or about one’s own? A question for another blog entry, perhaps.)

So, while I’m certainly not applauding recent efforts to pass off fiction as actual fact, I do think we ought to consider the possibility that things in this area have actually gotten better rather than worse. If just as much–or even more–of this sort of thing went on in the past, and what’s changed is that now people care more about truth and accuracy than they used to, then that, to my mind, is something to be applauded rather than bemoaned.

The Supreme Court Hits the Road (December 20, 2007)

As I’ve told the various groups I’ve met with--and as readers of A More Obedient Wife already know--Supreme Court Justices of the 1790s spent a good deal of their time riding around the country holding circuit courts. This is one of those things that you simply can’t imagine Supreme Court Justices putting up with today. I can just hear the reactions: You want me to spend months every year traveling around the country--on HORSEBACK? You want me to stay at foul-smelling, crowded taverns where I might have to share a room, or even a bed, with a stranger? You want me to preside over actual trials, which might go on for weeks, and more likely than not are stupefyingly boring? You want me to pay the travel expenses out of my own pocket? And you want me to do all this in addition to my usual Supreme Court workload?

Actually, Supreme Court Justices of the 1790s weren’t too wild about the idea either--they expended a good deal of effort railing against the system and trying to get it changed. Some of them even quit because of it. Even George Washington was convinced that circuit-riding wasn’t working and would soon come to an end. Trying to persuade a reluctant Thomas Johnson to accept a Supreme Court nomination in 1791, Washington wrote to him that "it is expected some alterations in the Judicial system will be brought forward at the next session of Congress," including the elimination of circuit-riding. Wouldn’t he have been surprised to discover that circuit-riding actually lasted another 100 years?

I was surprised by that too, when I discovered it. I knew quite a bit about the beginnings of circuit-riding: When the first Congress passed the Judiciary Act of 1789, which set up the federal court system, it provided for three levels of courts, just as we have now: district, circuit, and Supreme. But Congress provided for only TWO levels of judges, district judges and Supreme Court Justices. The circuit courts were to be held twice a year by the local district judge (there was one in each state) and a traveling Supreme Court Justice or two. (Another difference from the modern system: today, circuit courts hear appeals from trials that took place in the district courts, but in the 1790s the circuit courts were primarily trial courts themselves.) It looks like Congress skimped on judges partly to save money, and partly to limit the size of the federal bureaucracy--puny by our standards, of course, but suspiciously large in the eyes of the many who feared that this newfangled federal government was going to trample all over the rights of the states. In addition, the Justices functioned as something akin to goodwill ambassadors for the federal government, delivering so-called "charges" to the local grand juries that were basically speeches in support of federalism and the new Constitution. And high court judges in England had traditionally ridden circuit, holding trials, so--never mind that England was tiny compared to the United States, and that the roads were far better there--why not do it here?

So I could more or less understand why the system of circuit-riding had been set up in the first place (although it was clearly far from a good idea--for one thing, Justices found themselves in the awkward position of hearing appeals from their own decisions). But why on earth had it lasted over 100 years, as the country grew larger and larger and the Supreme Court’s docket increased dramatically as well? This is a question that has often come up when I’ve been speaking to groups about A More Obedient Wife, and I confess that--until now--all I’ve really been able to provide by way of an answer is a shrug. But I’ve just done some research on the subject, and I can now provide something a bit more authoritative. (I should add that I’m indebted to a student-written comment in the Cardozo Law Review--for anyone interested in reading more deeply on the subject, it’s "On the Road: The Supreme Court and the History of Circuit-Riding," by Joshua Glick, and the citation is 24 Cardozo L. Rev. 1753.)

The Justices almost got the relief they yearned for just after the turn of the 19th century. The Judiciary Act of 1801 made a number of reforms in the judicial system, prime among them the elimination of circuit-riding: it created a new set of circuit courts, this time equipped with a set of circuit judges to go with them. But this very sensible legislation soon fell victim to politics. The Act was passed by a lame-duck Federalist Congress, and the new judges were appointed by a lame-duck Federalist President, John Adams. When Thomas Jefferson and his Democratic Republicans took over a few weeks later, they denounced the statute as a Federalist plot to pack the judiciary with Federalist judges (the so-called "midnight judges," since their commissions weren’t finalized until Adams’s last day in office). Ignoring the constitutional provision about federal judges having life tenure, the new Congress simply repealed the Act in 1802--eliminating those 16 new circuit court judges, and putting the Justices right back where they had been before.

Or possibly, putting them in an even worse position: the Repeal Act provided that there would be six circuits instead of the previous three, and that each of the six Justices would be permanently assigned to a particular circuit. Because some circuits were farther away and longer than others, there would inevitably be inequities. (At the Court’s very first meeting in 1790, the Justices had meted out permanent circuit assignments, but--because of these very inequities--in 1792 Congress had passed a law requiring that the circuit assignments be rotated.) And just to make sure that the Justices didn’t strike the Repeal Act down as unconstitutional, Congress passed another act that prevented the Supreme Court from meeting for the next 14 months!

Of course, the Justices could have simply refused to take up their circuit-riding duties again. Or they could have at least held the Repeal Act unconstitutional when it was challenged in the circuit courts and ultimately--after the Supreme Court started meeting again--in the Supreme Court. But, wary of engaging in a direct confrontation with Congress, they chose not to. Under the canny leadership of Chief Justice John Marshall, the Justices side-stepped the question of whether you could constitutionally fire a bunch of federal judges and instead held that circuit-riding HAD to be constitutional because ... well, because the Justices had already been doing it for so long! So if you do something unconstitutional long enough, it apparently becomes constitutional. Anyway, it’s clear Marshall didn’t think this was the right issue for the Court to flex its muscles on; at almost the same time, the Court did that more diplomatically in Marbury vs. Madison, the case that firmly established the principle of judicial review.

So, onward the Justices trudged, as the country absorbed the Louisiana purchase and then expanded its borders to the Pacific Ocean. It’s not that the Justices learned to love circuit-riding. One of the most vocal complainers was Justice Peter Daniel, who--among other indignities--in 1851 found himself in a beached steamboat in Arkansas that had been converted to a hotel: his room was only six feet by four feet, and he spent the night being tormented by "Buffalo gnats" (not that I know what they are, but they sure don’t sound pleasant). And pity poor Justice Stephen Field, assigned to hear cases up and down the entire Pacific coast, from Los Angeles to Portland. As if that trek wasn’t bad enough, while on a train in California in the 1880s Field was attacked by a disgruntled defendant in a case he had heard in circuit court. After the deputy U.S. Marshall accompanying Field shot and killed the assailant, the two of them--Field and the Marshall were both arrested for murder. (The charges against Field were later dropped, and the deputy Marshall was released on a writ of habeas corpus.)

Not only was the country growing larger, but so was the Supreme Court’s workload. The Supreme Court was obliged to hear any piddling case anyone appealed to it, just as it was in 1790. But in 1790, there weren’t many cases to hear (in fact, that year there were actually none), whereas almost 100 years later, in 1887, the annual docket had grown to almost 1400. And, partly because the Justices’ circuit-riding duties limited the amount of time they could spend hearing Supreme Court cases, three-and-a-half years might elapse between the date a case was docketed and the date it was argued.

So--what was Congress’s problem? Why on earth didn’t they do something about this miserable situation? Well, some of them tried--bills would be passed by the House but then rejected by the Senate, and vice-versa. And a few things WERE done: the number of Justices was increased to nine, and the Justices were allowed to skip a circuit court now and then. But, as with the Judiciary Act of 1801, partisan politics sometimes prevented broader reform: when, in the 1850s, President Franklin Pierce proposed creating a new class of circuit judges to relieve the Justices of their circuit-riding duties, anti-slavery forces blocked the proposal because they feared that Pierce would appoint pro-slavery judges.

Beyond that, some in Congress repeatedly defended circuit-riding with what we might now call an "inside-the-Beltway" argument: eliminate the Justices’ circuit-riding duties, and they would lose touch with "the people." As Senator George Badger (great name!) opined in 1848, if the Justices weren’t forced out of the capital on a regular basis, they would become "philosophical and speculative in their inquiries as to law ... unseen, final arbiters of justice, issuing their decrees as it were from a secret chamber--moving invisibly amongst us, as far as the whole community is concerned; and ... losing in fact the ability to discharge their duties as well as that responsive confidence of the people, which adds so essentially to the sanction of all acts of the officers of Government."

Despite such arguments, in 1891 an act was passed--finally!--that created a new class of circuit courts of appeal and abolished circuit-riding. Well, almost: as a "gesture to tradition," circuit-riding was preserved, but it was made voluntary. But (surprise, surprise), most Justices chose to buck tradition and stay home. (The 1891 act also allowed the Justices to pick and choose most of the cases they heard, resulting in a dramatic shrinkage of the Court’s docket.) In 1911, the coup de grace was delivered: circuit riding was officially abolished. But by that time, no one really noticed.

Personally, I’m grateful that the First Congress forced the Justices to ride circuit: if Justices Iredell and Wilson hadn’t spent as much time on the road as they did, there would have been far fewer letters around with which I could reconstruct their lives and those of their respective wives. But having read those letters--with their poignant expressions of anxiety for family members left behind, and hair-raising tales of misadventures on the road--I can certainly understand why the early Justices felt circuit-riding was the bane of their existence.

Nowadays, of course, things are different: constant communication via cell phone and e-mail would eliminate much of the away-from-home anxiety, and the Justices would no longer be required to wade along flooded roads or gingerly walk across frozen rivers (sometimes falling in). And maybe there’s something to that "inside-the-Beltway" argument--maybe it would do today’s highly insulated Justices some good to get out to, say, Wyoming or Mississippi and encounter some people who don’t live in Washington (and who maybe aren’t even lawyers). But still. Can you see, say, Justice Scalia routinely waiting in line, shoeless, to pass through metal detectors along with the hoi polloi? Or sitting through the arguments in a run-of-the-mill contract or property case in Des Moines or Houston? I don’t think so. For better or worse, I’m willing to bet good money that circuit-riding isn’t going to be making a comeback anytime soon.

Adventures in Publishing  (August 25, 2007)

First let me say that I have my doubts about blogs. It seems to me that the print media produce enough verbiage without the addition of the unedited, unmediated thoughts of anyone who happens to have access to a computer and the internet. Still, I can’t quite resist the temptation to add my own two cents to this maelstrom of hot air. The prospect of "publishing" my writing by merely hitting a button--without having to subject myself to the unpleasant and often demeaning process of cajoling some distracted, world-weary editor into applying his or her imprimatur--is just too alluring.

For my first (and perhaps last) installment, I thought I would address myself to a question that has often been put to me: how difficult was it to get A More Obedient Wife published? I confess that this is a question that makes me cringe, and I usually try to change the subject. But in the interest of shedding a little light on the current state of the publishing industry--both for the benefit of interested readers and any aspiring writers--I’ll take a crack at it. And I might just exorcize a few demons in the process.

When I began researching and writing the book, I understood that the chances of getting a first novel published were slim. I told myself that I was doing it as much for my own amusement as for anything else, and that I would not be disappointed if the manuscript ended up gathering dust in my desk drawer. But of course, I had some faint hopes of fame and fortune, or at least fame--what writer doesn’t? And then, thanks to an accidental encounter, I found an agent before I’d even finished writing, something nearly unheard of for a first novel by a relative unknown. When I sent her the complete manuscript, she called me and told me she loved it. My hopes began to rise. If a big-name New York agent--the first agent who’d ever seen or heard of the book--was this enthusiastic, surely it wouldn’t be that difficult to find just one publisher who’d be willing to take it on.

But it was. Although many of the responses were complimentary, there were no takers. It’s hard to pinpoint a reason--many of the rejections simply said, maddeningly, something along the lines of "I just didn’t fall in love with it"--but I suspect the manuscript at that point was too long (over 600 pages), with too slow a start. My agent advised me not to shorten it, saying that whatever publisher bought it would want to do the cutting themselves. At the same time, she quickly began to lose faith in the project. After about 15 rejections, she told me she didn’t know where else to send it: what with all the consolidation in the publishing industry of late, she said, there just weren’t that many options. She also stopped taking my calls and answering my e-mails, having realized I wasn’t going to be making her a quick buck, and when I did manage to reach her to ask her a question, she was curt and unpleasant. (This isn’t unusual behavior for agents, who work on commission; many of my writer friends have had similar experiences, and I suppose it’s understandable. Still, I found it demoralizing, especially on top of all the rejections.)

At that point I hired a literary consultant to help me figure out if there was anything I could do. On her advice, I cut about 200 pages, mostly from the beginning, and made some other fairly minor changes. I then begged my agent to send the book to at least a few more places, which she grudgingly did--but with no success. At that point my agent advised me that it was "time to move on to another project," which is publishing-speak for "you’re fired." (In another euphemism, no one ever "rejects" a book; they simply "pass" on it.)

I can’t say I was sorry to part ways with my agent at this point, but on the other hand, I was now left high and dry. Since my agent had already sent the novel to most of the major publishing houses, it would be very difficult for me to find another agent--publishing etiquette dictates that you can’t send a manuscript to the same house twice, not even to a different editor, unless the manuscript has been fairly drastically changed, and the literary consultant advised me that the changes I had made wouldn’t be considered that drastic. So a new agent would only be able to send the manuscript to some smaller publishers, who were unlikely to pay enough money to make it worth an agent’s time. (Not that the amount of money mattered much to me; at this point, I just wanted the novel to see the light of day.) My only real option, the consultant told me, was to send the manuscript out myself. But most publishers won’t even consider unagented submissions any more, and the few I managed to find who would look at mine decided to "pass."

At this point, I was ready to give up. It’s only a novel, I told myself; there are other things in life. And I was tired of living under a cloud of failure. It was indeed, as my agent had told me, time to "move on." But before I did, I decided--after some agonizing--to take advantage of one of the many print-on-demand self-publishing companies that have sprung up in recent years. For very little up-front money, anyone can now publish a book, with copies being printed off as they’re ordered. At least I would then be able to give copies to my friends and families in a more manageable format than a pile of loose typewritten pages. And perhaps some others with a pre-existing interest in the background of the novel--the early Supreme Court, or the town of Edenton, NC--would be interested in reading it as well. (The print-on-demand company I used, lulu.com, allows authors to list themselves or another entity as the "publisher;" I chose to use "Kalorama Press," taking the name of a street I used to live on.)

Some friends of mine graciously gave me a book party, and I also sent a few copies to people I thought would be interested. Some of my friends bought copies of the book to give to others. And then I started to hear from people--friends, acquaintances, and even total strangers--that they found the book fascinating and "couldn’t put it down." Coming on the heels of so much rejection, these comments were a total, and of course very welcome, surprise to me. I began to think that perhaps there were others out there who might respond positively to the book, and that I should try to do whatever I could to reach them. After spending eight or so years working on the book, it seemed that I owed that much to myself--and to the nearly forgotten historical personages whose lives I had tried to resurrect in fictional form.

And so, after having resolved to put the book behind me, I find it still very much in front of me. Nearly every day I do something that relates to promoting the book. And it’s an uphill struggle: as with blogging, the virtue of self-publishing is also its drawback. That is, the great thing about self-publishing is that anyone can publish a book; and the bad thing about self-publishing is that anyone can publish a book. A book that has merit but has fallen through the cracks of the publishing industry can now be self-published; but so can a book that has little or no merit. And the fact is, much of what is self-published is pretty awful. It’s also true, of course, that much of what is published by "real" publishers is pretty awful, but when you’re self-published it’s much harder, if not impossible, to reach any readers. Bookstores generally won’t stock your book, and newspapers and magazines won’t review it. With thousands of books that have been published in the traditional way clamoring for attention, why should they take a chance on something that doesn’t even have that minimal seal of approval?

So it’s been frustrating, but also worthwhile. I’ve managed to find a few people who are eager to help me spread the word about the book, and their enthusiasm means the world to me. This fall is shaping up to be a busy time: I have a number of speaking engagements--including seven DAR chapters in the Washington, DC, area--and an upcoming interview on a Pennsylvania public radio station. And I’m hopeful that those who have read and enjoyed the book will pass it on to others.

If there’s anyone reading this who is contemplating self-publishing a book, I’d like to warn you not to expect it to shoot to the top of the New York Times bestseller list (although, of course, you never know). Instead, try to figure out what kinds of people might be interested in reading the book, and then go after them in a targeted way. (This is usually easier for nonfiction than for fiction, but it’s possible even for many works of fiction.) It won’t be easy, but it may very well be rewarding--almost certainly more rewarding than looking at a dusty manuscript in a desk drawer and sighing over it from time to time.

If I had known at the outset what lay ahead, would I have spent eight years researching and writing A More Obedient Wife? Probably not. But on the other hand, I’m very glad I did.