As chief prosecutor, Ould declared himself ready to prove that not only was the deceased unarmed, but Dan knew him to be so. He knew it when the first shot was fired, and certainly must have known it when he stood over his victim, “revolver in hand, seeking to scatter the brains of one who had already been mortally wounded in three vital parts, and whose eyes were being covered with the film of death.” This was not a murder committed on momentary impulse. So deliberate had Dan been that when he was stopped by bystanders, he had been trying “to add mutilation to murder.” Murder was the killing of a human being with malice aforethought, manslaughter the killing of a human being without malice aforethought. Obviously, Dan Sickles had malice aforethought. These matters were established in common law, said Ould. No degree of innovation had ever suggested that revenge should be either a justification or a palliation of the crime of murder.
The crowd in court looked to Dan to see how he was standing up to these evocative accusations, but he showed no tremor. He, his lawyers, and faithful George Sickles were no doubt pleased that Ould did not foreshadow evidence that would show the double standards by which Dan lived, and that could have been used to diminish the idea of extreme provocation by Key. Why he did not do so may have been a reflection of nineteenth-century popular moral nicety about matters of male adultery, or may have been the result of pressure, implied or explicit, from powerful Democrats, perhaps even from Mr. Buchanan. Ould simply asked the jurors “to proclaim to the four quarters of the now listening world that there is virtue left yet in a jury, no matter how high the position or lofty the pretensions of the offender.”
Thus, as the new DA sat down, there must have been some relief at the defense table. James Topham Brady deferred the defense’s opening, and the first prosecution witness was called. James H. Reed, a wood and coal merchant, told a hushed court that, when strolling on Pennsylvania Avenue, he had seen by Lafayette Square the confrontation between Dan and Key, had seen Key running around Reed in his attempt to get away from Sickles and then slowly throwing something through the air. Most damagingly, Mr. Reed said that “no shot was fired when the parties were not facing each other. Their faces were toward each other on the occasion of each shot. . ..” The prosecution was pleased to hear this said, since it meant that at each stage of the killing, Key’s stricken and pleading face was visible to Dan. Reed also helped damn Sickles by saying that the shortest distance between him and Mr. Key during the last shot and the final misfire was only about two or two and a half feet. “Key fell on his side and elbow with his face toward Sickles.” The district attorney had Mr. Reed repeat and confirm that distance—the lethal two or three feet. Dan’s counsel and his father kept a sharp eye on him now, wondering if Reed’s memories of the fatal Sunday would unsettle him. But still he gave no sign of being affected. It was obvious that he was not ashamed of the scene in the square.
The second and third witnesses, Mr. Van Wyck, clerk in the Treasury Department, and Mr. Delafield, would confirm Reed’s picture of events as reliable in all its fundamentals. Martin, Isaac, Tidball, Usher, the young employees of the federal government who had carried Key’s body back into the Clubhouse, also confirmed the prosecution view of events, so Brady turned to another matter: the idea Ould had released in the courtroom that the only reason Dan had worn an overcoat that Sunday was to store his weapons in it. Usher, questioned by Brady, confessed that he too had worn an overcoat that day. Two others of the four admitted donning overcoats that Sunday. “I presume I did,” said one. “However, for not being in good health, I usually do.” A witness who had claimed that Sickles wore rather a long overcoat confessed on cross-examination that he too had worn one from the National Hotel that day.29
Dan had come through a crucial section of the prosecution evidence without embarrassing his defense by any display of emotion. It was the journalists who were in a frenzy, and they fell into yet another fever on the fifth day of the trial, when the coroner, Thomas Woodward, came to the witness stand. First, he produced a derringer pistol, “stocked to the muzzle, plated, and about seven inches long, with a wide rifle bore. Ramrod absent.” He had been given it by a witness, he said, who had picked it up from the street when Dan apparently cast it away. The coroner had also supposedly brought to court the clothes of the victim. Before an engrossed public and jury he lifted from the floor of the witness box a large kerchief and untied it. He took from it first two keys and the case for a pair of opera glasses, and then unfolded a bundle of clothing and held up a white bloodstained shirt, which he displayed to the court, and then a pair of gray-striped pantaloons. He pointed to the blood-encrusted hole in the pantaloons where the ball had entered the right thigh. “The place is stiffened and stained with blood,” the coroner explained. There was, yet again, “a deep sensation” in court. To some, these blood-soiled clothes represented the relics of a victim. To Dan, they were the rags of a contemptible fellow. From the top to the bottom of his soul, he believed it; he did not have to argue with himself on that issue.
Where were the vest and coat? the coroner was asked. Oh, he casually confessed, he did not have them with him. So he was instructed by the judge to leave the stand to find and produce them. A little later he came back, apologetic. They were somewhere around the building, but he wasn’t sure where. The district attorney announced he could get by without the vest or coat, but Edwin Stanton objected, and a search of the building at last turned them up. The coroner pointed out the hole made by the lethal ball on the left side of the vest. The garment was handed around among the jury members, as was the brown tweed coat with its bullet hole.
When Brady interrogated the coroner on the number of pockets in the pantaloons, and their contents, Mr. Woodward did not seem informed at all on these matters. He said he believed there was a small wallet on Mr. Key’s person, which he had already delivered up, but the situation at the Clubhouse had been hopeless, with more than a hundred men on the premises. “Knew most of them,” he said philosophically. “Some were strangers.” But no one in particular had had charge of the body.30
The army surgeon who had come running from H Street to the sound of shots that Sunday afternoon, Dr. Coolidge, testified that the clothes were removed from Key by Dr. Stone and him, and that the next day both doctors had performed a more thorough postmortem. When the body was opened, said Coolidge, there proved to be a great quantity of blood in the cavity of the belly. The bullet had entered the left side, under the edge of the spleen, and cut the portion that lay near the backbone. “It did not injure the great blood vessel to the body, but the two of the left kidney.” After traversing the whole thickness of the lobe of the liver, it entered the right cavity of the chest, broke the eighth rib, and lodged under the skin. The left side of the chest contained a large quantity of blood—a quart, at least.
Dan sat solemnly through this surgical depiction of the damage he had done Key. What of the man’s treacherous heart? Barton had always been concerned about the health of this particular organ. Yet it appeared that his anxiety had been baseless. “There was a somewhat unusual amount of fatty deposit on the left side of it,” said the surgeon, “but the structure of the heart itself was healthy.” As for the first wound in the thigh, which might have been more easily argued to arise from ungovernable impulses on Dan’s part, it had not been fatal. “The vessel wounded was an external vein—flesh wound.” As a scientific gentleman, Ould asked, what would the surgeon say had been the position of Key at the time of the fatal shot? Though Dr. Coolidge argued that the course of a pistol ball was very tortuous and difficult to trace, his opinion was that Mr. Key must have been lying on his right side, the body turned a little to the right, and the shoulders somewhat higher than the hips. That is, his face had been toward Mr. Sickles.31
From the objects on the prosecution table, Ould was able to pick up the ball taken from Barton Key’s body and ask whether it was the lethal bullet fired by Dan. Yes, said Dr. Coolidge; he recognized the mark made on it by Dr. Stone. It was the one he had ext
racted from the right side, the only ball found in the body. District Attorney Ould tried to fit it to the derringer pistol that was being presented in court, and it did not fit, nor did it conclusively fit the revolver Dan had carried away from the scene and surrendered to the U.S. Attorney General. So Dan must have had a third pistol, the prosecution implied, and could fairly be considered a walking arsenal.
And that, for the moment, was the prosecution case. District Attorney Ould announced that the United States had closed its testimony. Even the defense lawyers were a little surprised. Ratcliffe rose for Dan Sickles and asked His Honor to require the DA to call certain witnesses not yet placed on the stand—among them Samuel F. Butterworth, Governor Robert J. Walker, and George C. Wooldridge, the clerk of the Congress. Dan Sickles, said Ratcliffe, had been committed to prison on the testimony of Mr. Butterworth, and if his testimony had been good enough to imprison Dan, it was good enough to be presented in court now.
At this, Robert Ould became furious. He had good reasons, he said, not to summon Butterworth before the grand jury; and these reasons he intended to keep within his own breast now and hereafter. “I imagine, however, that these reasons were very well known to the gentlemen for the defense.” Some surmised from this mysterious statement that the President may have intervened to keep Butterworth away from the court. Judge Crawford, writhing and sweating in his judicial wool on the bench, declared that it was a fair presumption that the affidavit Butterworth made at the jail was an act friendly to the prisoner, and that it was done to prevent a thorough examination at that time. Thus, the judge ruled there was no need to call Sam Butterworth to the stand. As for Walker and Wooldridge, they were not present in the court at the moment, and that itself was sufficient reason to reject the motion.
It was late at night before the matter was decided, and through a March cold snap that laid ice on the branches of the capital’s trees, Dan and his friends walked back to the jail. Laymen at Dan’s side, like Chevalier Wikoff, assured him that if this was all the defense had, he was safe. But Dan must have noticed that his legal team offered no such guarantees.32
George Sickles was staying at the National with Brady and other counsel. He was tired from the daily emotional attrition of the case, but he shared with Dan the tough cast of the Sickles heart, and he was surprised and delighted that night by a deputation of ladies who arrived to ask whether, to give comfort to the prisoner, they should present themselves with as many others as they could muster at the courthouse. The one at the head of the deputation was a venerable woman of some sixty years who said she and her sisters demanded Dan’s discharge “on behalf of our sex. Let him be convicted, and the libertine obtains new license.” George Sickles acknowledged the honorable and generous motives of these ladies, and promised to pass their sympathy to his son, but he thought the courthouse too harsh and earthy an environment for them, and that they served the cause best by staying by their hearths and praying for Dan.33
Though all knew that in a significant trial this would be a significant day, for whatever reason Dan next morning was late in being brought to court. John Graham was ready to address the jury on behalf of the defense. But it was nearly half past ten before Dan was in his dock and John Graham was able to embark on a spate of oratory that would massively outshine Robert Ould’s more cumbersome opening. For one thing, Graham’s opening would run the rest of the day and into the next morning.
He began with a Latin adage Amicos res optimae pariunt adversae probant—“Good situations generate plenty of friends whom bad times test.” “I have been his companion in sunshine,” said Graham, “and am now called here to participate in the gloom of his present affliction.” It was only a few weeks since the body of a human being was found in the throes of death in one of the streets of the capital; the body of what Graham called “a confirmed and habitual adulterer.” All on a day too sacred for Key to profane it by worldly toil; on a day when he should have risen above the grossness of his nature; on a day when he should have “sent his aspirations heavenward.” Instead, Key used that day to besiege “that castle where for their security and repose the law had placed the wife and children of his neighbor.” What was Dan to do on such a day and under such siege? “The injured father and husband rushes on him in the moment of his guilt, and under the influence of a frenzy executes on him a judgment which was as just as it was summary.”
Dan appreciated these arguments all the more because they came not only from an advocate but from a longtime friend, one to whose value as a comrade he had even sought to compel Teresa to assent. Graham told the jurors they were in court “to fix the price of the marriage bed; you are here to say in what estimation that sacred couch is held by an honest and intelligent American jury.” In this federal city, consecrated to liberty but not the libertine, it could be construed that the death of Key was to the jurors’ personal gain, for they had no guarantee that their wives and daughters had not been “marked by the same eyes that destroyed the marriage relations of the defendant.” Shakespeare’s Othello, said John Graham, gave a good lesson for the misery of the defendant. Told by a friend of the supposed adultery of Desdemona, Othello cried,
Had it pleased heaven
To try me with affliction; had he rais’d
All kinds of sores, and shames, on my bare head;
Steep’d me in poverty to the very lips . . .
I should have found in some part of my soul
A drop of patience . . .
But there where I have garner’d up my heart;
Where either I must live or bear no life . . .
Ay, there, look grim as hell.
Mr. Ould had used “extraordinary expressions,” such as “the prisoner coming to the carnival of blood”; “adding mutilation to murder”; “as though he had a dagger in his hand, ready to plunge it in his bosom.” But the learned counsel had not described the weapons in possession of the adulterer. What about the opera glasses and the white handkerchief, just as certain of causing death to the adulterer and moral death to a household as the weapons of the defendant?
In all this, the central issue to which Graham kept returning was the one of temporary insanity, the idea that Dan could not have been in a state of malice aforethought before the killing in the square. “We mean to say not that Mr. Sickles labored under insanity in consequence of an established mental permanent disease, but that the condition of his mind at the time of the commission of the act in question as such would leave him legally unaccountable, as much so as if the state of his mind had been produced by a mental disease.”
At least one newspaper later criticized Graham for arguing that on one hand Dan was too frenzied to behave calmly and with reason, and yet in the same breath claiming that the killing of the adulterer was right and just and admirable. “If it be a crime for a husband to defend his humble family altar,” Graham had said, “and death is visited on him for defending it, then the highest honor which can be conferred on any man is to compel him to die such a death.”
But back to provocation! Mr. Key was not some seducer unknown to the husband. He was a man who had been regularly permitted to enter the house of Mr. Sickles as a close friend. When Mr. Sickles sighted Key in the square that Sunday, all Dan’s just rage was inflamed. In these circumstances, Graham boldly argued, the prosecution needed to prove Dan’s sanity at the time of the act. And they could not do that, because there was enough in the case “to melt the heart that is not cut from the unwedgeable gnarled oak.” Admittedly, the common law of Maryland, derived from Britain, did not consider adultery an offense. But the reason society had not legislated against adultery was that it considered it every man’s right to defend himself against the adulterer! In law, said Graham, the personal body of the wife was the property of the husband, and the wife could not give away her own purity. If she did, the husband “has the same right against the adulterer as if he ravished her.” Graham quoted authorities who had established the principle “that in defending his wife, the husba
nd defends himself.”
So the cardinal inquiry was whether the deceased was in the grace of God and of the United States when he was killed; and whether Mr. Sickles was moved and seduced by the Devil when he killed him. That, after all, was the language in the indictment. What an atrocious verdict that would be: “to declare on the oaths of a jury that when Philip Barton Key met his death he was in the peace of his God and this community . . . and that Daniel E. Sickles, the injured and outraged husband, when he slew him under this provocation . . . was tempted and set on by the Devil.”
Graham by now had been speaking for hours, but the spectators remained engrossed. Nineteenth-century orators and their audiences possessed heroic attention spans, and oratory was public sport. Instead of groaning each time Graham’s prodigious speech entered a new phase, the crowd leaned forward more eagerly. Veering between legal scholarship and moralism, Graham confessed that he had called on Mr. Haley, the Presbyterian clergyman who had visited Dan on the first night of his imprisonment, to find instances of retribution for adultery in Scripture. Mr. Haley had obliged not only with Old Testament tales of pestilence and death arising from adultery, but with the injunctions of Christ himself. Did then the jury suppose that society really meant that adultery should go unpunished? “No; it throws you on the law of your heart— there is the repository of your instincts; go by them and you affect the will of heaven, and when you execute them you execute the judgment of Heaven.”
A year earlier, a case had been tried in this very court against a man named Jarboe, indicted for the murder of his sister’s seducer. The judge, Judge Crawford himself, had told the jury that the status of the prisoner’s mind was a matter entirely for them, and in that case the jury had acquitted the brother after fifteen minutes of deliberation. Because, said Graham, “to stab an adulterer was not to draw a weapon within the meaning of the statute of James I, even though the adulterer had no weapon, because the statute was never meant for the protection of the adulterer.” In the prosecution’s mind, the killing of an adulterer seemed reducible to manslaughter only if the husband discovered “the actual coition. . .. But if the husband has never the right to stay the adulterer until he catches him in coition with his wife, he will never have the right at all.”