HUMBUG: TOWARD A LEGAL HISTORY
Susanna Blumenthal
Note to readers: What follows is a set of reflections on the apprehension of fraud in nineteenth-century
America, drawn from my current research. They are written to speak primarily to the conference topics of legal doctrine
and popular culture, though capitalism, risk, and bureaucracy also have important parts to play in the story.
“Fraud is infinite.” So wrote Lord Hardwicke to Lord Kames in a 1759 letter, opining that
courts of equity could not “lay down rules how far they would go and no further” without finding
their jurisdiction “cramped, and perpetually eluded by new schemes, which the fertility of man’s
invention would contrive.” The words of the jurist acquired increasing currency in an era of dizzying
commercial development, finding their way into nineteenth-century American as well as English
legal discourse. They passed from Joseph Story’s Commentaries on Equity Jurisprudence into the
decisional law of several states, which was recapitulated in treatises such as Melville Bigelow’s Law of
Fraud, perpetuating the notion that the law had to remain open-ended if fraudsters were to be
brought to justice. “Fraud is kaleidoscopic, infinite” a Missouri judge confirmed in a 1913 opinion,
embellishing only slightly as he voiced the conventional judicial wisdom that “a hard and fast
definition” was neither possible nor desirable as a matter of law. Without relieving the buyer of the
requirement to beware, he maintained that “there is a boundary that must not be crossed” by sellers,
though he deliberately declined to say where it was: “Fraud-feasors would like nothing half so well as
for courts to say they would go thus far, and no further in its pursuit.”
P. T. Barnum inadvertently illustrated this point in The Humbugs of the World (1865), his
sprawling treatise/exposé of the “tricks of the trade” comprising this “universal science.” Mimicking
(if not mocking) the learned professors of his day, Barnum began with a disquisition on definitions,
one that made no mention of Hardwicke or any other legal authority, instead consulting the
dictionary of “Doctor Webster.” There he found humbug defined as “imposition under fair
pretences” when used as a noun and “to deceive; to impose upon” when deployed as a verb. “With
all due deference,” Barnum took exception to this entry because it might be read to comprehend
unlawful as well as lawful forms of misrepresentation. Transparently seeking to clear humbug of any
implication of wrongdoing (not least because his name had become synonymous with it) he
suggested the term was most commonly understood to exclude “crimes and arrant swindles.” A
respectable-looking man who gained the confidence of another in order to pass a spurious draft or
bank-note was “justly called a ‘forger,’ or a ‘counterfeiter;’ and if arrested, he is punished as such,”
Barnum observed, “but nobody thinks of calling him a ‘humbug.’” A humbug did not impose with
the intent to injure and he might well be “an honest upright man”—a philanthropist, even, if he
shared the showman’s benevolent aim of improving the minds and morals of his audience under the
cover of entertainment.
Despite or perhaps because of these professions of good faith, Barnum is often associated
with the ethos of caveat emptor. In biographies and broader cultural studies, he is often taken to
exemplify the creative destruction enabled and legitimized by the era’s “market-friendly laws.” A
number of the new histories of capitalism, most notably Jane Kamensky’s The Exchange Artist and
Stephen Mihm’s A Nation of Counterfeiters, tend to reinforce this rendering of the legal landscape,
leaving the impression that police and prosecutors were overmatched by a wily class of moneymakers, who took full advantage of the ambiguous borderlands between “capitalist enterprise and
criminal mischief.” The law and its enforcers, in other words, figure mainly as flouted authorities,
honored in the breach. This seems to me to underestimate the conceptual power of the law and to
understate its role in the nation’s reckoning with the problem of deceit in this period, begging all
sorts of interesting questions about the relationship between legal doctrine and popular culture. In
attempting to write humbug out of the law of fraud, Barnum was certainly playing with its
ambiguity. But he was also invested in establishing himself as a legitimate sort of imposter, the
purveyor of a valuable form of amusement. The Humbugs of the World was, in a sense, the homage he
paid to The Law of Fraud. Moreover, many of his artful maneuvers bear a striking resemblance to the
forensic tactics of opposing counselors, to say nothing of the newsmen who presented these trials to
a broader reading public. In what follows, I offer a brief rendition of a single case: the sensational
forgery trial of Charles B. Huntington, a Wall Street broker who was tried and convicted of this
offense in December of 1856. In the spirit of this conference, I treat the trial from the standpoint of
intellectual history as David Hollinger has defined the field of concern: “the historical acts of people
who made history by arguing.” The judge, lawyers, witnesses, and newsmen who participated in this
legal spectacle may be taken to fit this description and the way it played out inside and outside the
courthouse ultimately goes to show that capturing fraud was a funny business in Barnum’s America.
*****
Famed for being able to command thousands of dollars “by the dash of a pen,” Charles B.
Huntington epitomized the instabilities of the paper economy in antebellum America. His arrest
touched off something of a media circus, as reporters within and beyond New York rivaled each
other in conveying the audacity of the forger’s misdeeds. Huntington was rumored to have bilked
some of the most “eminent” money-lenders and “responsible” firms out of upwards of half a
million dollars by manufacturing and passing bogus notes and bills. Such revelations fueled
speculation about how he had managed to cheat so many sophisticated businessmen of so much
money for so many years, particularly in view of his own want of skill and circumspection. Indeed, it
was said that Huntington’s forgeries “did not even pretend to be imitations” and he called attention
to his unearned wealth by living extravagantly in plain sight, exemplifying the garish ways of “the
codfish aristocracy” whose members maintained their status by swindling each other as well as
unsuspecting strangers. A few editorialists took the opportunity to brand all of Wall Street as a
criminal subculture but most responded with greater ambivalence, apparently unsure how seriously
they ought to take this form of humbuggery. Yet without attending much or at all to the proof
requirements of the applicable forgery statute, most newsmen had pronounced Huntington guilty by
the eve of his trial. The only puzzle was why he had not been caught any sooner.
Opening the case for the prosecution, District Attorney A. Oakey Hall began by simply
reading the indictment and offering some etymological musings about another crime, one that had
taken place in the realm of ideas:
Now it is very singular, and something which eminently challenges the attention of
the legal scholar, to know when and how and why the encyclopedia of criminal law
robbed the dictionary of honest labor of the word FORGERY. You will not be able to
find why and wherefore that the spendthrift sitting at his desk in secret—in selfimposed exile from the social community—alone with his crimes and his vices,
should do that according to the nomenclature of the law, which the arm of honest
labor does as it strikes upon the anvil—forge—forgery! And yet through many years
it has come down to us to mean that worst, that meanest, that most despicable of all
commercial lies which a man can tell, or which a man can make,—a black lie and a
white lie at the same time.”
In pointing to this appropriation of meaning, Hall sought to tap into the popular ambivalence about
“the Street” that pervaded the discourse of the era. Strongly suggesting that an honest broker was a
contradiction in terms, Hall chronicled Huntington’s descent into crime with an air of inevitability
and placed his forgeries—amounting to at least half a million dollars—on par with the most violent
of offenses: “This man has stabbed at the commercial reputation of men you and I have an interest
in. He has inflicted a blow on the people of New York.” Glossing over evidence that the notes in
question were clumsy fakes, Hall endeavored to persuade the jurors that the prisoner was as devious
as he was depraved, operating in accordance with “the most wide awake and shrewd method” and
animated by “a sort of moral insanity that seemed to have seized him.”
This would prove to be an unfortunate choice of words. For the defense team, headed by
the virtuoso trial attorney James T. Brady, agreed that their client was morally insane, making this
the basis of their argument for acquittal. They did so over Huntington’s manifest objection, uttered
in open court: “A splendid farce this! A capital joke by gad!” Most news editors immediately echoed
his sentiments, gleefully heaping ridicule on this plea of insanity. Undaunted, Brady called upon
several respectable medical men to validate his diagnosis. They found the alleged crimes to have
been performed with such incompetence as to indicate the perpetrator was devoid of moral sense
and likely manipulated by the far more sophisticated money-lenders who now claimed to be his
victims. Contending that the trial had been punishment enough for his client on the account of the
publicity alone, Brady assured his audience that Huntington presented no threat to the community
because “he will go forth advertised . . . as if he had a placard placed upon his breast and another
upon has back displaying in broad letters the words, ‘Insane Forger.’”
When it came time to charge the jury, the presiding judge Elisha Capron issued an
ambivalent charge. While unable to summon up much sympathy for the putative victims, he was
unwilling to accept the notion of moral insanity as an excusing condition, instructing jurors to
adhere to the McNaughten test of criminal responsibility. Less than four hours later, they returned
with a guilty verdict and with even more dispatch Capron sentenced the prisoner to the maximum
term of five years in Sing-Sing Prison. Newsmen across the country pronounced themselves
pleasantly surprised. “Thus has terminated one of the most remarkable trials of the day,” reported
the Springfield Republican, “contrary to general expectation, a New York court has decreed the
punishment of a magnificent swindler.” Closer to the scene of the crime, The New York Herald
enthused: “The result, therefore, exceeds our highest expectations in behalf of justice, law and order.
We are disposed to regard it as the inauguration of a new epoch in the prosecution of rogues,
ruffians and swindling financiers before our courts.”
Unhappily it was not. “Huntington the Great Forger” lived on in the popular press as a
strange sort of success story, inspiring imitators who were given their fair share of publicity as well.
Easily the oddest such story concerned a case of attempted forgery: a man posing as a friend of
Huntington’s tried to get Brady to bankroll the prison break he had plotted, representing that he had
a forged pardon at the ready and just needed some cash for purposes of safely transporting him out
of the country. This con man fooled no one and was lampooned under headlines announcing “More
Moral Insanity” and making light of the whole affair, though this should not be mistaken for lightheartedness. For a palpable sense of unease can be detected just below the surface of these news
stories about con men and their exploits, and when they are read alongside and in connection with
the cases of fraud that were daily litigated in civil and criminal courts, it becomes clear that the law
provided an important resource and form of redress for victims of deceit. Nor does this exhaust the
historical significance of these courtroom contests, for they also served as critical testing grounds
(not unlike Barnum’s museum exhibits) for competing epistemologies, psychological models,
behavioral ideals, and visions of social order. Taken together, they provide a telling window on the
the norms of honesty, prudence, and fair dealing that Americans expected to be observed within
households, churches, hospitals, and the marketplace, not to mention governmental institutions like
the courthouse itself.