The Unwritten Law and the Right to Kill (Part 1 of 2)


News of the murder of U.S. District Attorney Philip Barton Key (son of Francis Scott Key of Star Spangled Banner fame) on February 21, 1859 would have been electrifying enough by itself.   That Key had been killed by New York Congressman Daniel E. Sickles, a prominent politician and lawyer  who apparently believed that Key had been romantically involved with his young wife ensured the full attention of Washington society.    220px-Sickles_homicide[1]

Daniel Sickles was certainly no stranger to scandal.    Having been first elected to the New York State Assembly in 1847 (with the help of the notorious Tammany Hall political machine to which he belonged),  his marriage to Teresa Bagioli in 1852 helped alienate his family and hers as well (he was thirty-three while she was only fifteen at the time).   Whatever misgivings people had about the age difference between them didn't prevent Daniel Sickles from holding a diplomatic post in London before returning to the U.S. and winning his first seat in Congress in 1857.   Despite his apparently successful marriage to Teresa, Sickles also ha a long association with notorious New York courtesan Fanny White and had even taken her with him to London while the pregnant Teresa was left at home.   

Whether it was being neglected by her husband or the humiliation of the very public affair he had been having with Fanny, Teresa's own affair with the handsome and charismatic Philip Key was the apparent trigger that led to murder.   According to the lurid news coverage that I was able to track down, Sickles had heard rumours of the affair and confronted his wife who "sighed as acknowledgement of her guilt."  He even reportedly ordered Key to leave his wife alone but apparently decided that threats alone wouldn't be enough.  Later seeing Key near Lafayette Square, across from the White House, Sickles left his own nearby house to confront him.  After accusing Key of "having dishonored him and destroyed his domestic peace", Sickles then shot him twice.  One bullet was lodged near Key's right side while the other bullet lodged in his right side near the femoral artery.  Falling to the ground, Key begged Sickles not to kill him but Sickles fired a third time and Key died at the scene.  

After the shooting, Sickles went to the nearby home of the Attorney General, Jeremiah Black, who urged him to turn himself in to the police, which he promptly did.  In the meantime, Key's body was taken to the National Club house where an inquest had little trouble determining that Sickles had been responsible for his death.   There were numerous witnesses, after all.   Though Sickles was taken to jail and charged with murder, he still had numerous visitors, including some of the most prominent members of Washington society.    Then-President James Buchanan also sent a note of support.   Sickles was certainly better treated than other prisoners since he was allowed to keep his gun and even met his prominent visitors privately in the warden's office.  Despite the favourable treatment,  Daniel Sickles knew perfectly well that he would stand trial for murder soon enough.

As one newspaper story pointed out, "the high position of the parties in this tragedy has caused the most unusual excitement."   Despite facing a possible death penalty, Sickles attracted a lot of sympathy (even though his own infidelities were well-known).   Newspapers related all the details of Sickles' visits from various family members describing his young wife's emotional torment over the role she played in the whole scandal. 

Looking over the newspaper coverage of the case, I couldn't help but be struck by the almost total support that Sickles received from Washington society.   At the same time, there was virtually no sympathy for Teresa Sickles or Philip Key (which likely distressed both their families).  That Teresa likely had to endure far worse from her husband's affairs was apparently dismissed as irrelevant.   If she was mentioned at all, it was for being a remorseful adulteress who drove her husband to murder.  

Almost immediately, Sickles began putting together a "dream team" of prominent attorneys to defend his case.  These included Edward M. Stanton (later Secretary of War) , fellow New Yorker James T. Brady  (both Brady and Sickles were Tammany Hall cronies), and Brady's partner, James Graham.   Under their legal guidance, Sickles agreed to plead temporary insanity (the first time this had ever been attempted in a U.S. trial).   The real defense though would be the "unwritten law" allowing a man to commmit murder to avenge the sexual "dishonour" of a wife, daughter, or sister.    Beginning around 1840 (and likely sooner), men who went on trial for cases very similar to Sickles' were typically acquitted because of the "unwritten law."   It was an often-slippery defense to try using in a courtroom, though.   Given the eminence of Sickles' victim and the fact that the murder took place near the White House, pleading temporary insanity likely seemed safter to his lawyers. 

The trial began on April 4 in a stuffy Washington courtroom with Robert Ould and J. M. Carlisle acting as prosecutors.   And it was quite a trial.   Edward M. Stanton and James T. Brady both gave memorable arguments on behalf of their client.  The fact that Stanton was a personal friend of Daniel Sickles helped add to the courtroom drama.    The "unwritten law" was central to their defense along with their claim that Sickles was too mentally disturbed to be held accountable for his actions.    Though the prosecutors attempted to bring up Sickles' own infidelity to show that he wasn't that emotionally invested in his marriage, the judge excluded that line  of testimony.   The prosecution then shifted to discussing the cold-bloodedness of his attack on Key and downplayed  any supposed provocation.

The trial lasted for twenty-two days with numerous melodramatic scenes.   Members of the audience often cheered at something Brady or Stanton said despite stern warnings from the judge.    Stanton was particularly effective as he weighed in on the "sanctity of the marriage vows" and the husband's right to defend his home.   One commentator later said that Stanton's performance was "a typical piece of Victorian rhetoric, an ingenious thesaurus of aphorisms on the sanctity of the family."   Newspaper editorials across the country weighed in on the case and full details of Teresa's candid confession were leaked to the press (likely by Sickles' attorneys).   Popular magazines such as Harper's Weekly ran pictures of Sickles in prison, often showing him in prayer or weighed down by the stress of the case and the horrors of being in prison (despite being far better treated than the average prisoner).   Many of the editorials even suggested that Sickles was a hero for "saving all the ladies of Washington from this rogue named Key".  There seemed little doubt that he would eventually be acquitted.

The defense worked.   After deliberating for only seventy minutes, the jury brought in a verdict of not guilty and the crowd went wild.   To prevent a mad rush to congratulate his client, Stanton asked the judge to release Sickles from custody which was immediately granted.   As one eyewitness reported, "Mr. Stanton, unable to repress the emotions of his big heart, . . . almost rivaled David when he danced before the ark of the Tabernacle."   That night, enthusiastic supporters serenaded Stanton, Brady, and Sickles.

After the acquittal, Daniel Sickles publicly forgave his wife for the affair (with no mention about his own infidelity) and temporarily withdrew from public life.  If anything, the public seemed more outraged by Teresa than her husband and she became a social pariah afterward.   Sickles never resigned from Congress and his political career continued on  as strongly as ever.   It helped that he had the public support of President Buchanan (who was openly thrilled by the acquittal), not to mention the not-so-covert aid of the Tammany Hall political machine. 

Any political fallout from the acquittal was quickly overshadowed by the U.S. Civil War which broke out soon afterward.  Daniel Sickles became a prominent  figure in the Union Army and, ironically, his old adversary Robert Ould would become part of the Confederate Army.   Though he stayed in the army until the end of the war, Sickles' military career ended after losing a leg in the Battle of Gettysburg (which was the only thing that saved him from being court-martialed for insubordination for his actions during the battle).  Ever the showman, Sickles donated the fractured bones of his lost leg, complete with a miniature coffin, to the new Army Medical Museum in Washington, D.C. where they remain on display even today.  Eventually promoted to the rank of major general, Sickles moved on to a diplomatic career with postings to Colombia and Spain (and a rumoured affaired with the deposed Spanish queen).    After Teresa's death in 1867, he remarried and had two more children by his second wife.  

Daniel Sickles died in New York City in 1914 and is buried in Arlington National Cemetery.   Though he is mainly remembered for his military and political career, the role he played in establishing temporary insanity and "the unwritten law" as legal defenses for murder can't be underestimated.   Both defenses would play a role in numerous murder cases as husbands would use the defense to escape punishment.  Never mind the fact that many of these outraged husbands were often guilty of infidelity themselves, the "unwritten law" made murder perfectly legal so long as it was for the "right" reasons.  

But it only applied to men.   Any woman committing murder under similar circumstances would be prosecuted to the full extent of the law.   This became abundantly clear in the case of Kate Southern, a Georgia housewife who was charged with murdering a rival for her husband's affections in early 1878.  I'll get into that next week.

To be continued









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