The journalist from the Herald who visited Dan the evening before the trial began found three gentlemen sitting quietly with the prisoner, one of them, of course, his fond father, George. Dan conversed in a pleasantly natural manner on politics and foreign affairs. He was still what he had been, a man who sought to save the Union by appeasing the South. Abolitionists were still, to him, fanatics, and George and others were pleased to pass on to Dan tales of their latest follies. Dan’s relations with George were open and manly, and smacked more of fraternity than of the more conventional filial quality. With Dandy sitting on his knee, he looked so easeful “that no one would imagine that he bore a great and abiding grief in his heart.” The Herald writer might have been fascinated to know that Dan was corresponding warmly with Teresa, to the great and reckless peril of his own neck.
The opening of the trial was attended by representatives of both the American and the foreign press. One journalist reflected on the reason the British were taking so much notice of the case. It was, he concluded, because the elements of the murder—the openness of the killing, the prisoner’s immediate surrender, the intolerable provocation, the beauty of Mrs. Sickles—“combined to take it out of the ordinary catalogue of criminal crimes and to render it one of the causes célèbres of history.”19
The venue for the trial was City Hall, where Barton had had his offices; it was barely more than a block from where, a little more than a month before, his body had lain in state. The room in which elderly Judge Thomas Hartley Crawford was to hear the murder case had high, arched windows with louvered blinds and candelabra lacking candles. Because the weather had turned cold again, the furnaces were fired up. From his seat on the bench, the bespectacled Judge Crawford peered down through a fog of uncomfortably humid air at a court to whose atmosphere those gentlemen who were not as fastidious with their washing as Dan Sickles added their malodor. The temperature within the chamber would indeed become so stifling one afternoon that the judge adjourned the trial.20
When the doors of the court were opened at nine-thirty that first day, gentlemen of the public, including diplomats and members of the Washington bar not directly involved in the trial, came rushing in, and some were forced to invade the courtroom through a window and stand on tiptoe against the wall to witness events. The only women to attend during the course of the trial would be women witnesses. Because of the numbers of accredited journalists, the court attempted to accommodate them on stools and at a long bench brought in from the lobby, but some complained that they had no surface on which to write, and more seats and desks were needed. Near the defense table, Dan’s father sat beside Antonio Bagioli. People considered George youthful-looking despite his gray beard, and he had in his hand the copy of Harper’s Weekly that contained an illustration of Dan, which he showed to people nearby. Touchingly, he seemed gratified when they said it was a good likeness.21
Judge Crawford entered the courtroom at 10:15 a.m., had the case— Docket Number 124—called, and asked both teams of lawyers if they were ready to proceed. When the lawyers said they were, Crawford had the law clerk, Erasmus Middleton, a young man to whom Barton had given a gold pen at New Year’s, call out the names of the witnesses for the prosecution.
For the lawyers at Dan’s table there was the excitement of being involved in the most notable murder case of the era, even for those— Edwin Stanton, James Topham Brady, Philip Phillips, Sam Chilton, and John Graham—who already had established legal reputations. But the eminent Edwin Stanton did not charm the journalists as Brady and Meagher did. Stanton was hard-bitten; he was sour-faced. But he was estimable. As for the younger lawyers, it was perhaps the most exciting trial they had been involved in, the one exception being Thomas Francis Meagher. For, after all, Meagher had been famously charged in Tipperary with the capital offense of high treason for his involvement in the Irish uprising of 1848, and been condemned to be hanged, drawn, and quartered, a sentence later commuted by act of the British Parliament to transportation to Australia for life.22
As the names of prosecution witnesses were read that morning, Dan, scrupulously washed and shaven, and soberly dressed in a dark coat and vest, light pants, a frock coat over the lot, and a top hat, left the district jail to walk the three blocks to City Hall. He was led by Marshal Seldon and accompanied by a police guard and by the warden, Jacob King. King was by now a friend and had every reason to be grateful to Dan. Because of his presence the jail was newly provided with water closets and primitive sewerage.
One Washington child who would live well into the twentieth century remembered Dan being escorted to and from the jail on most of the days of the trial, for Dan’s route lay near Washington’s public school on Fifth and F Streets. Dan, this child remembered, marched with head erect, glancing neither to the left nor right, and did not play to the “rabble crowding and running in the streets.”
He was received at the court and, accompanied by guards and several supporters not yet inside, entered the hubbub and the hot air of the court. He was placed in the dock, a cagelike yard a little over waist high and, in the view of some of his friends and counsel, abhorrent to his dignity. They described it variously as a “cattle crate” or as a “chicken coop with a chair placed inside it.” In this demeaning enclosure, its limits jostled by an avid crowd, Dan stood upright and with fixed expression throughout the reading of the curiously worded indictment. It was specifically the second shot that Dan would stand trial for: “. . . and that the said Daniel E. Sickles, with the leaden bullet aforesaid, out of the pistol aforesaid . . . then and there feloniously, willfully and of his malice aforethought, did strike, penetrate and wound him, the said Philip Barton Key, in and upon the left side of him . . . [giving him] one mortal wound of the depth of ten inches and of the breadth of half an inch; of which said mortal wound, he, the said Philip Barton Key, then and there instantly died.” In response to the question of how he pleaded, Dan declared, “Not guilty.”23
Thirty talesmen, or potential jurors, were waiting to be called and examined, chiefly by Mr. Ould and Mr. Phillips. The issues cast up by the questioning of the first talesman, Mr. Joseph B. Bryan, were ones that would cover the whole jury selection. The new district attorney put the question to Bryan: “Have you at any time expressed an opinion in relation to the guilt or innocence of the accused?” The juror said that he had. Phillips, for Dan’s defense, suspecting that this juror might have voiced an opinion in Dan’s favor, argued that the question was not whether the juror had formed or expressed an opinion based upon rumor or newspaper reports or things said by neighbors and friends who had witnessed the killing. The salient question was whether, if the facts made known through the trial turned out to be different from those the juror had expected, he would be able to render an impartial verdict. But Mr. Bryan, the potential juror, said he could not render such a verdict anyhow. “I form my opinion merely upon rumor . . . my mind is biased in favor of the prisoner.” The judge ruled for the prosecution. Mr. Bryan was thanked and discharged. Through all this, Dan maintained his stoic demeanor.
The reality, however, as Dan’s lawyers saw, was that only those Christian souls who believed the slaughter of the lover to be inappropriate behavior for a wronged husband would be selected. Mr. Ould threw in the added complication that he insisted upon property qualifications in jurors, as did the State of Maryland, and ruled out jurors who did not meet the requirement of owning property valued at $800. Since this $800 property limit had not been imposed in similar cases, Ould’s insistence on it would attract much scorn from Dan’s lawyers, especially the scathing Stanton.
A number of talesmen were dismissed for saying they were prejudiced one way or another and did not think they could render a fair and impartial verdict.24 Early in the afternoon, after only five jurors had been chosen, Clerk Middleton announced that the regular panel of thirty potential jurors was exhausted, and the court ordered the marshal to summon seventy-five citizens to be present the next morning at ten o’clock for selection. But th
e day’s business was not ended. Mr. Stanton rose, with an aggressiveness of manner that thoroughly affronted District Attorney Ould, and stated that he wanted to direct attention to the position of the prisoner’s dock. It was situated in such a way that counsel could have no access to him. The place where the prisoner should be, close to his counsel, was occupied by bystanders. Judge Crawford said the dock had always been there, but the officer of the court would, he stated, keep a passage open between the defense table and the dock. Mr. Magruder then presented the second wing of the argument: The gentlemen associated in the defense of Dan were from Virginia, Alabama, Pennsylvania, and New York, and it was a practice in all those states to place the prisoner in such a position that he could readily communicate with his counsel. During the trial of Vice President Aaron Burr for high treason, the accused had been permitted to sit at the table with his legal advisers, and was furnished with pen, ink, and paper.
The judge, who had had a hard day in his unruly, overcrowded, and overheated court, said he had never heard of a man on trial for his life being taken from the dock and allowed to sit on the floor of the courtroom. But, expecting a daily mass of spectators, he wisely ordered that the dock be moved overnight to the rear of the bar, to a place behind Dan’s counsel and immediately facing the bench.
When the court adjourned, Dan was marched out of the courthouse, as he would be every day, with a phalanx of friends, consisting today of a chipper and paternally hopeful George C. Sickles, Manny Hart, Antonio Bagioli, Chevalier Wikoff, Sidney Webster (the private secretary of the President), and Thomas Francis Meagher, along with “other gentlemen, distinguished in law and politics, from the city and State of New York.”25 Dan had been reassured when so many potential jurors had expressed a prejudice in his favor and only one had mentioned the gallows. His friends thought that this helped account for his self-possessed and calm manner.
Judge Crawford took his seat the next morning at ten-thirty, and found that though the crowd had increased, it was better organized and regulated. The first thirty-seven citizens questioned in jury selection that day were excused. Washington being a small city, one man declared he was on the spot a few minutes after the killing, and had expressed his opinion there, at the site of the murder, and it was an opinion strongly in favor of one side.
Edwin Stanton still feared that many potentially favorable jurors were being excused by the court on a questionable point of law. He expressed this belief at a stage of the day when only one new juror, James Kelley, a Washington tinsmith, had been sworn. “There was no intelligent man who did not read newspapers . . . and when those impressions were such as would yield to the superior weight of evidence when introduced to him in the jury box, he was, most assuredly, a qualified juror.” But Judge Crawford let Ould continue to apply a narrow test to the selection, and of the seventy-five talesmen summoned to the court that day, only three were selected, and with the five chosen the day before, they were cautioned by the court not to allow anyone to converse with them on the case now pending, and were sent away to an amiable quarantine at the National Hotel. They were generally delighted to be associated with this famous trial, but one, Mr. Arnold, an older man who would be jury foreman, prayed that God would spare him to complete the task.26
Even by the third day, when another seventy-five talesmen were available, the less than exciting business of empaneling a jury had not lost its crowd appeal, and again in court there was heat and the press of bodies. An incident that amused the crowd but harrowed Antonio Bagioli occurred when a man named Charles H. Kiltberger declared that, as an indication of his lack of bias, “if the prisoner was guilty, he would say, hang him as high as hell.” Though Dan seemed calm, there was what the press always called “a sensation” in the court, and the defense peremptorily challenged Kiltberger. As he left the box, Mr. Bagioli rose and stood in his way. “I heard you just now say something harsh of the prisoner,” said the renowned musician and voice teacher, “but let me ask you if you had lost your wife, or had your daughter sacrificed, would you have been able to control your feelings and be governed by your reason?” It was not quite a rational question, but an embarrassed Kiltberger could see that Bagioli was in pain, and he offered apologies for his remark.
That third afternoon, with the jury still not fully selected, Stanton again challenged the $800 property requirement, bamboozling Ould into admitting that he had tried only one other murder case, and in that one the $800 qualification had not been insisted upon. “It was because,” admitted Ould, “I was not aware of the existence of the law at that time, and therefore could not put it into practice.”
This was a naive and fatal admission to make to such a ferocious jurist as Stanton. He asked Mr. Ould how long he had been practicing law in this district, and Ould replied that it had been since 1844. So Stanton started in: “You have the declaration of the gentleman, who for fifteen years has been engaged in the practice of the criminal law, who has been appointed by the President of the United States as a gentleman in every way qualified to enforce the laws of the United States . . . and yet has declared that until recently he did not know what was the qualification of jurors in this district. . .. Where has this practice been hidden that a man of intelligence didn’t know it? Why has it been buried in the oblivion of a hundred years to be dug out for the trial of Daniel E. Sickles?”
Dan, secretly gratified to have Stanton behave in this terrierlike way, showed no emotion in the dock. But he knew that pressing on Stanton was the sense of what he was up against with Ould and the judge. They thought of Washington, for the purposes of this trial, as part of Maryland and thus subject to Maryland law. Ould himself was a states’ rights man. He would ultimately become a Rebel officer on that principle, and be given charge of the exchange of Union prisoners for Confederates. And Judge Crawford, like much of the D.C. bench, tended to see the United States, for which he worked, as a mere pooling of residual jurisdiction not yet claimed by any states. Crawford thus believed that Maryland law prevailed here, and once again upheld Ould.
At the end of the day, twelve jurors had at last been sworn in. Two of them were D.C. farmers, four were grocers, one described himself as a merchant, another as a gents’ furnisher. A shoemaker, the tinner Kelley, a coach maker, and a cabinetmaker filled out the roster. Most of them fitted the American ideal of the self-made man, to the extent of a minimum $800. Going back to his cell that night, Dan knew the intimate features of those who would decide whether or not he would hang.27
The fourth day of the trial was the subject of public anticipation, since Robert Ould would make his address to the jury, and those wonderfully titillating issues murder and adultery would at last be broached. Dan’s assiduous lawyers may have suspected something of their client’s contact with Teresa but would have been horrified to know that he had written yet again to his wife, and in such terms as to evoke a response that could have been close to fatal to the defense.
“I cannot tell you, dear, dear Dan,” Teresa wrote within a few days of receiving Dan’s further correspondence, “how much pleasure your letter written yesterday gave me. I am so glad the flowers were acceptable. You are not wrong in supposing that I am pained by your silence, and equally pained at receiving the letter you sent me.” In it, Dan had defended some of his allies, such as Butterworth, Wooldridge, perhaps even Stanton and Meagher, and such value did he put on them that it seemed he wanted her to agree with him that they were all jolly decent fellows. But as dependent on kindness from Dan as she now was, Teresa would not submit and accept that all his friends were seamlessly good men. After all, some had mischievously made known the details of her confession, which he had shown them. It was an index of the weight he put on his friendships with other males that he should have sought to set her such a test. “You know, Dan,” she told him, “I never affect to love or dislike a person—and I am, in a certain way, as frank as any breathing creature. You say if I can hate those whom you love and who love you then it is vain for you to appeal to me aga
in on such a subject. Dear Dan, it would be impossible to love those who hate me and have injured me, have called me every foul name, as I believe it would be to have you love me again or even ever wipe out the past.” She continued in the same forthright vein. “You say that any object you have loved remains dear to you. Do I now stand upon a footing with the other women I know you have loved? I have long felt like asking you what your love affairs have been—love of the heart, or love of their superior qualities such as you have often informed me I did not possess, or attraction of face and form, or an infatuation? If during the first years we were married my conduct did not keep you true to me, can I suppose for a moment the last year has? Ask your own heart who sinned first, and then tell me, if you will.”28
Obviously, Dan needed to steel himself to hear Ould’s address to the jury, which would attempt to darken him by extolling the right of the eminent Mr. Key to go on living unmolested. Sickles’s pernicious act had been committed against Key in the soft gush of Sabbath sunlight. Key, unarmed and defenseless, had used the feeble means that were in his power to save his life. Whereas the prisoner at the bar came fully armed “to this carnival of blood. . .. He was a walking magazine.” Ould argued that Dan had selected his weaponry with care, and had provided himself with “the temporary armory” of a “convenient overcoat on an inconveniently warm day.” Against this moving battery, said Ould, the victim “interposed nothing, and had nothing to interpose,” except his physical strength, his presence of mind, “a poor and feeble opera glass . . . and last of all, the piteous exclamations which, however they might have moved other men, in this case, let me state, fell upon ears of stone.”