Chapter 20: Some Magnetic Power
Supplement to Endnotes
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Endnote 1) If Mary paid for some portion of George's defense, the total trial costs must have been extraordinary. Cornelius put forth a small fortune too.
Changing laws about women's property and selfhood did not mean the citizens understood or knew those laws. The public seemed confused over whether or not a wife could testify in court in a trial against her husband. Within the logic of coverture, in which a wife was an extension of the husband, a wife could not testify in her husband's trial as that might lead to self-incrimination. Yet some papers speculated that Hiscock himself had just changed the law in New York so that a wife could -- and that Mary, therefore -- would take the stand: “By an innovation in the law of evidence, which the deceased was himself mainly instrumental in securing, the wife of the accused may be called as a witness in his defense. We shall then learn, perhaps, whether her confession was extorted by force, by the man of blood." (Albany Argus quoted in Syracuse Journal, June 6, 1867.) But then, days later, the notion was dispelled in another newspaper: “It has been supposed that under the new act last winter, the testimony of Mrs. Cole might be taken on the trial. The Albany Journal quotes the following section of the law to show that this is not so: -- ‘2. Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding, (except to prove the face of marriage in the case of bigamy,) or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding from divorce on account of adultery, except to prove the fact of marriage, or in any action or proceeding for or on account of criminal conversations." See: The State League, June 15, 1867.
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Endnote 4) Looking for elusive notes for this part. Coming soon!
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Endnote 7) The hatred for Butler was only matched, perhaps, by the zeal of his devotees. His letters reveal that he remained wildly popular, and in demand. Take for, example, the days and weeks surrounding the Stanwix murder. On the day of Hiscock’s death, another woman, whose husband had served in a Wisconsin regiment, wrote to tell the congressman that she had named her young boy Benjamin Butler Briggs. She requested Butler’s picture and autograph so she could teach the boy to “imitate the Defender” who had “caused the Rebels to tremble in New Orleans.” The memento would be treasured “more than gold,” she claimed. That same month, an older man wrote after hearing false rumors that Butler and General Grant were planning to develop gold mines in North Carolina. He sent a page full of references and offered his services as a clerk in the venture. Another fellow politician wrote that though “old fogies” in the Republican Party wanted to nominate Grant for president, there was in Massachusetts “a young, live, active, element” pulling for Butler. Look for example in The Papers of Benjamin F. Butler, Library of Congress: June 1-10 Folder in Box 42; Ms. Arabella to Benjamin F. Butler, June 7, 1867; Jennie Briggs to Benjamin F. Butler, June 4, 1867); Letter from Smith’s Ferry to Benjamin F. Butler, June 1, 1867; .E.J. Sherman to Benjamin F. Butler, June 15th 1867.
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Endnote 8) Cornelius had attended the first meeting at St. Charles Hotel of Sacramento when Theodore Judah pitched his vision to investors for what would become the First Transcontinental Railroad. From that time forward, Cornelius -- though only a small investor in the venture - cultivated a useful friendship with the railroad magnates. Historian of the railroads, David Bain, paints Cornelius as a fairly conscientious political ally of the railroad powers. Cole did not follow through with his support for the Goat Island grab. After backing out, Huntington fumed that Cornelius would not stay bought. Earlier, just after winning the Senate seat, Cornelius appears to have taken a “loan” from Mark Hopkins, the Treasurer of the Central Pacific Railroad. In a letter to Collis P. Huntington, Hopkins wrote: “We loaned him $5000 which he will repay us in service as he may be able to render in any way not inconsistent with his official function. You will see him, of course, and you can rely on his cordial friendship.” See: David Haward Bain, Empire Express: Building the First Transcontinental Railroad (London: Penguin Books, 2000) pp.85, 418-419; Hopkins quotes in Bain, Empire Express, p. 260.
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Endnote 9) The similarities between the two cases were obvious to all. In 1859, Sickles learned that his wife, Teresa Bagioli, was carrying on a widely rumored affair with Philip Barton Key (son of Francis Scott Key of “Star-Spangled Banner" fame). When the hiding Sickles spotted Key standing outside the Sickles’ Washington D.C. home, waving a handkerchief to his paramour (Bagioli), Sickles sprang toward the adulterer and killed him in the open with two pistols.
Endnote 10) James Brady had defended anti-war agitators who, in his mind, had been railroaded by Lincoln’s administration. He had even joined the defense counsel for Jefferson Davis, president of the defeated Confederacy, before the prosecution eventually dropped the charge of treason. Brady would not raise the hackles of anti-emancipation jurors as Butler would have surely done. (In fact, Brady had recently headed up an investigation of Butler and his department’s suspected corruption in New Orleans.)
George and Cornelius, teetotaling Methodists with anti-Irish feelings, remained suspicious of Brady, an aging bachelor whom they accused of showing up to court soaked with liquor. In the letters between Cornelius and Olive it is taken for granted that Brady drank heavily. Of course, this might have been their anti-Irish prejudice at work, but Brady did die soon after the trial at the relatively young age of 54. The need for mesmerizing oratory outweighed their qualms. Cornelius wrote with relief that Brady promised to be “fully alive” to the challenge and that he would make the trial “the great exertion” of his career. Huntington, the railroad magnate, had assured him of it. Bain, Empire Express, pp. 418-419; Cornelius Cole to Olive Cole, 11/7/1867, and, Olive Cole to Cornelius Cole, 11/5/1867, in Cole Family Papers, UCLA.
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Endnote 11) On Amasa Parker and anti-slavery: When various Democratic agents had been arrested during Lincoln’s election in 1864, for supposedly intercepting New York soldiers’ votes (for Lincoln) and altering them into votes cast for McClellan, New York’s governor sent Parker and two other agents to the capital to challenge the arrests. See: Sidney David Brummer, Political History of New York State During the Period of the Civil War (New York: Columbia University, 1911), pp. 434-44.
Endnote 13) As for the prosecution: The first attorney, Henry Smith, was a District Attorney of Albany and a Republican Assemblyman; the second, Charles Sedgwick, had earned a reputation as a Radical Republican (and had attended with Hiscock an academy in the small village of Pompey, New York). Sedgwick had been part of the Syracuse Vigilance Committee, a group of abolitionists who helped runaway slaves, fresh from the underground railroad, hide and make their way to the Canadian border. He once stood before Congress and called for intensified war measures to crush the confederacy and destroy the institution of slavery. The third prosecutor was Lyman Tremain, the former Attorney General of New York State, and an intimate friend of the deceased.
Endnote 15) On plans to emphasize mental illness in the Cole family: Five months after the murder, Cornelius wrote Olive before returning for his evening visit. He reported that just that day, George’s attorney, Hadley, had discovered patterns of “extreme nervousness” and depression among women in the Cole family: Rachel, the mother, sister Asenath and even aunt Betsy Cadmus who “was once insane etc. etc.” Cornelius Cole to Olive Cole, November 8, 1867, Cole Family Papers, UCLA.
Endnote 19) On being cool during a scene of death: Even Cornelius unintentionally revealed how the coolness of George during the murder was damning evidence. In a letter about his brother’s trial to his colleague, Cornelius condemned the prosecutors’ efforts to have his brother hanged. They were the true murderers. “[George] was moved by overwhelming passion, while they act with all the coolness that characterizes unalloyed malice [cool malice] of incarnate fiends.” See: Cornelius Cole to James McClatchy, May 31, 1868, Cole Family Papers, UCLA.
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Endnotes 25 & 26) Attorneys were usually allowed to “challenge for cause” an unlimited number of potential jurors. The lawyers only needed to persuade the judge that the candidate had an unbudging opinion or was incompetent in some way. But a limited number of times either counsel could immediately reject jury candidates with no required reason or justification. Such cards could only be played a precious few times and were reserved for gut-level suspicions about a potential juror’s predispositions or prejudices. Certain reading patterns must have been important in making such calculations. See: Laura N. Wegner, “Juror Anonymity in Criminal Trials: The Media, the Defendant, and the Juror--Providing for the Rights of All Interested Parties,” in Albany Government Law Review, Vol. 3, 2010, pp. 433-37; The challenging “for cause" is explained in a guide for New York courtroom proceedings, though published in 1831. See: Charles Edwards, The Juryman's Guide Throughout the State of New-York: And Containing General Matter for the Lawyer and Law Officer (New York: O. Halsted, Law Bookseller, 1831), chapter IX, especially 90-92.
Of course, the supposed divide over the murder, between Democrats and Republicans -- and the political news they consumed -- of course, did not often match reality. Religious identity, commitment to law and order, ethnicity, and people’s “ethnocultural” makeup played into opinions just as deeply. For example, Sigsbee, the deputy sheriff, had been a Democrat Party faithful who decades earlier earned his credentials editing an Anti-Rent paper that challenged the feudalist privileges of landlords in upstate New York. Yet his desire to hang Cole (who was only embraced by friends and conservatives) drew from other set of values and experiences.
Finally, the prisoner's life story did not fit within the partisan framework. He was at once a social radical who risked his life to liberate slaves and lead black men into battle; and he was a rearguard conservative who wanted to preserve coverture, manly honor, and a husband’s duty to protect his wife and her supposed purity.
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Endnote 31) It was a problem for Cole that such testimony, along with that of other witnesses, recalled him saying right after the slaying that Mary had been raped. Despite Mary’s second confession note, that admitted her partial consent, the word rape continued to pose a problem for the defense attorneys who much preferred the more ambiguous term “ruin.” Such a word like “ruin" left room for the first confessions and George’s earliest remarks. To the delight of the defense, some witnesses remembered the prisoner saying “child-like” or “innocent” before “wife.” One witness recalled that just after the deed, the killer half-incoherently repeated the same phrase over and over: “He has dishonored my simple, innocent wife. He has dishonored my simple, innocent wife. He has dishonored….” See: New York World, June 7, 1867; Lamoille Newsdealer, June 12, 867.
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Endnote 34) On Butler: one witness, Frank Spaulding, recalled from the stand how Cole imagined that he was despised by Butler. Remarkable Trials, pp. 270-271. The recorded trial records clearly omitted specifics. The record, both in newspapers and in the published court transcript, had been pared down. Certain war stories cherished by George’s family would have likely been seen as too exaggerated for the defense attorneys to repeat. One story had George jumping his thoroughbred over a railroad at a perilous moment, earning even the holler and a “rousing cheer” from his enemies. See: The Smith-Cole Family Papers, 1890-1936, folder pertaining to Cornelius Cole Smith, US Military History Institute, Carlisle, Pennsylvania.
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Endnote 39) These arguments, about a man viewing himself (through coverture) as the true physical victim of his wife's seduction, were more explicit in the trial of Daniel Sickles. See: Robert M. Ireland, “The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States” in Journal of Social History, volume 23, no. 1, Autumn 1989, especially pp. 27-28. Ireland argues that while husbands killing libertines was a much rarer event, that not until the 1840s did trials over such murders produce explicit defenses of the actions by claiming the libertine had to be killed for the sake of society (see, especially, pp 29-30).
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Endnote 42) That fathers and husbands could cue civilly for the seduction of daughters and wives: What isn’t clear is what separated civil-law seduction from criminal seduction. It appears that for it to be criminal (which could carry a sentence of up to five years in prison plus a fine) it usually had to do with single women who were promised marriage in exchange for sex. A rapist could serve for up to twenty years, by contrast.
Endnote 44) The gripping drama at hand gave way to parsing the various kinds of madness: moral insanity (which was linked to “irresistible impulse”), temporary insanity, inherited insanity, melancholia, common melancholy, kleptomania, hypochondria, monomania (obsessive madness about one subject) and so on.
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Endnote 45) At the end of the four-page circular (that Cornelius sent to Olive), the defense asks the opinion of the potential medical witnesses as to whether or not Cole could have been morally insane: “In the physical and mental condition described, would the sudden appearance of the seducer, be likely to produce such a disturbance of the circulation, as to render the accused, for a moment, incapable of controlling his own judgment and will[?]” In other words, the prisoner’s counsel was looking for experts who would testify that the soldier's wounds could have led to a momentary lapse of sanity.
George's most famous lawyer, James Brady, had developed the controversial term “moral insanity” during his defense of an infamous forger in 1856. This kind of insanity, he claimed, prevented humans from perceiving the difference from right and wrong. Men could only be responsible for evil acts if they first understood their acts to be crimes. The morally insane, though, had somehow lost the compass that all sane men used to navigate through destructive storms. Brady lost the case partly because the judge had done his part in dissuading the jury from taking moral insanity seriously. Brady had also had his hand in the relatively new concept of “temporary insanity.” When struck by this mental malady a person could flip into a kind of seizure of madness only to come out of it wholly sane minutes or seconds later.
Norman Dain sees this optimism about default human psychology breaking down starting after the Civil War. Also, faculty psychology, in particular, presented a formidable challenge for prosecutors to prove an individual was guilty when the self was seen as a compartmentalized being set out of order by external events. See: Norman Dain, Concepts of Insanity in the United States, 1789-1865 (New Brunswick: Rutgers University Press, 1964).