By Caleb Crain. Originally published in Legal Affairs 1.2 (July/August 2002): 28-33.
Bloated bodies, bigamous love, drunk stenographers, and other literary pleasures of the 19th-century trial transcript.
In the opinion of the plaintiff’s counsel, neither Charles Dickens nor Sir Walter Scott could have written a story as riveting as the 1860 Brooklyn divorce case of Beardsley v. Beardsley. In September 1855, Mary Elizabeth Beardsley allegedly took a ferry into Manhattan, made the acquaintance of an Irish doctor in a saloon, and then dropped a rosebud in the street outside to encourage him to follow her to P. T. Barnum’s museum. There she introduced herself as a single heiress from Nova Scotia named Emma Evaline Seymour. Under this false name she married the Irishman in December, and soon afterward they consummated their bigamous love.
Richard Busteed, the lawyer for Mrs. Beardsley’s aggrieved husband, denounced her in his closing arguments as “the harlot of the nineteenth century,” and his showy performance brought tears to the eyes of many in the courtroom. In a final flourish, Busteed appealed to whatever yearning the jurors might have had for literary immortality:
If the record of this case shall be preserved in some substantial form, men and women of other generations will recur to it when they tire of Dombey and Copperfield, and drop to sleep over Kenilworth and Ivanhoe. In the glow of this extraordinary drama of real life, the highly wrought pictures of the novelist will pale their intellectual fires. Long after the romance of Bardell against Pickwick shall be musty with forgetfulness, the sad truths of Beardsley against Beardsley, will rise up as sorrowing witnesses of the frailty of a woman who deliberately sacrificed the holiest relations of life upon the altar of a roving and unhallowed lust.
Alas, Busteed failed to persuade the jury that his client’s story was quite as true as it was interesting, and the fame of The Pickwick Papers has in fact outlived that of the roving and unhallowed lust of Mrs. Beardsley.
But Busteed was not wrong in thinking that trial transcripts were capable of rivaling fiction. Readers of that era loved them. Nathaniel Hawthorne had a “pathetic craving” for pamphlets about trials, his son reported, and he was not alone in his guilty passion. In 1833, the New Hampshire farmer Chauncey Cochran was so engrossed by a murder trial that he stayed home to read it instead of accepting his wife’s invitation to pick strawberries in a nearby pasture with her and the teenage hired hand—who in Chauncey’s absence made an “insulting proposal” to Mrs. Cochran and when she rejected him, beat her to death with a stake. The trial of her murderer, in turn, was published in at least three editions.
Printed transcripts were the Court TV of the 19th century, the true crime thrillers of Victorian America. Publishers chose trials that were especially grisly, humorous, resonant, or mysterious. Then as now, trials exposed the sins of extraordinary criminals, and as an unintended but much-appreciated consequence, they put the daily lives of many ordinary people under similar scrutiny. They are not for the faint of heart, or the queasy of stomach, or the weak of mind. In more than a few, the reader reaches the verdict convinced that the guilty have gone free and the truth has been buried deeper than the victim’s multiply autopsied corpse. But once acclimatized to the conventions of the genre, today’s reader may find them compelling, even addictive—provided she has a taste for violence, duplicity, greed, sexual degeneracy, and lawyerly disingenuousness.
Treachery and gore are always current, but styles of revelation change. To a 21st-century eye, trial pamphlets look quaint and sometimes puzzling. The reader can deduce a few things about them just by looking, however. Consider the Report of the Beardsley Divorce Case, the source for the anecdote above. The pamphlet’s price of 25 cents is advertised conspicuously near the top of the cover in capital letters, because trials were priced to sell. Most transcripts of the popular 1846 trial of Albert John Tirrell, for instance, sold for as little as 6 1/4 cents, as Daniel A. Cohen notes in his study of New England crime literature, Pillars of Salt, Monuments of Grace. Tirrell’s case was a particularly hot item: A young man from a respectable family, he murdered a prostitute in Boston and set her brothel on fire, but his ingenious lawyer convinced the jury that he had been sleepwalking. Before publication of its Tirrell pamphlet, the Boston Daily Mail advertised that it would be printing 20,000 copies. It went through four editions in less than a month.
At 25 cents, the price of the Report of the Beardsley Divorce Case was reasonable, but the pamphlet’s most attractive feature lay elsewhere. Above the price, in bolder type, the cover carried the legend “ITS CORRECTNESS CERTIFIED BY THE COURT,” and in the center of the cover was a testimonial to the transcript’s accuracy signed by the lawyers for both Mr. and Mrs. Beardsley. Readers of this pamphlet were paying slightly more for a guarantee that it contained fact rather than fiction.
Not every publisher was so nice about the truth. Consider the prolixly titled 1871 pamphlet Life, Trial and Execution of Edward H. Ruloff, The Perpetrator of Eight Murders, Numerous Burglaries and Other Crimes; Who Was Recently Hanged at Binghamton, N. Y. A Man Shrouded in Mystery! A Learned Ruffian! Was He Man or Fiend, published by E. E. Barclay of Philadelphia. It may be true that Ruloff, who had been imprisoned for the murder of his child, ran off with his jailer’s son, to whom he had been teaching Latin and whom he later drowned. It may even be true that in 1869 Ruloff expounded to a philological convention in Poughkeepsie, New York, a linguistic theory that he was willing to sell for a mere $500,000. But earning the reader’s trust was not Barclay’s highest priority. The tone of his pamphlet is histrionic (“The bloated bodies cast out by the Susquehanna had been proven to be those of apt pupils of the great master in crime, and the quiet retreat of the sedate and gentle linguist in Third avenue was shown to be a den of outlaws”), and the first page is numbered 19, to make the pamphlet seem longer than it is. According to the late crime bibliographer (and FBI agent) Thomas M. McDade, on title pages Barclay also liked to fake the location of his publishing house, which migrated toward the setting of the tragedy described.
The Report of the Beardsley Divorce Case is not fiction, but it reads as fluently as if it were. Mrs. Beardsley, for example, is introduced as “a lady of middle height, of exquisite shape, which is shown off by a tight-fitting jacket, and by such other ornaments of dress as a showy woman of means might be supposed to select.” The report contains all the aspects of the drama: an abstract of the pleadings, the complete testimony, the closing statements, the judge’s instructions to the jury, and the verdict.
Less tony publishers didn’t bother to print all these components. Cheaper pamphlets were often mementos rather than standalone works of literature. Their readers needed no introduction to a trial’s chief personalities and their crimes, because they had either attended the trial in person or followed the story in newspapers or through gossip. Read in isolation, for instance, the 32-page Trials of Capt. Joseph J. Knapp, Jr. and George Crowninshield, Esq. for the Murder of Capt. Joseph White, of Salem (1830) is so elliptical as to be incoherent. The attorney general opens the case against Knapp by acknowledging that the story of Capt. White’s murder was “so well known . . . that it will not be necessary . . . to enter into a minute detail of the incidents connected with it.” No doubt the attorney general did give a complete account of the killing, but the publisher abridged it because he assumed that most readers of Joseph J. Knapp Jr.’s trial would be picking it up just after they had put down the trial of Joseph’s brother and accomplice, John Francis Knapp. They would already know the plot. Besides, without the attorney general’s exposition, there would be more room for woodcuts, and the publisher had on hand some fetching ones of the Great Seal of the Commonwealth of Massachusetts, a murderer’s grave, and a large, more or less irrelevant ship.
At the foot of the cover of the Report of the Beardsley Divorce Case, the publisher listed five other trial pamphlets he sold, also for a quarter each: two more divorce cases; the trial of a pirate who chopped up his captain and two crewmates; The Life, Trial, and Execution of John Brown; and the Trial of the Hon. Daniel E. Sickles. In this last case, Sickles shot his wife’s lover, Philip Barton Key, the son of Francis Scott Key, author of the “Star-Spangled Banner.” John Brown, of course, was hanged for leading the attack on Harpers Ferry and would-be slave revolt that presaged the Civil War. The list is a fair sample of the sorts of trials turned into pamphlets: murders, especially the anatomically explicit; divorces, preferably involving celebrities; and cases in which a miscarriage of justice was suspected.
Not every pamphlet fell into these neat categories, however. A semantic and Melvillean question was at issue in the 1818 trial published as Is a Whale a Fish? The defendant, Samuel Judd, had purchased three casks of whale oil, and New York’s inspector of fish oil, James Maurice, was suing him because the casks had not been “gauged, inspected, and branded, according to law.”
The defendant’s counsel argued that whale oil did not fall under the jurisdiction of the fish-oil inspector because whales were not fish. To prove the distinction, the defense summoned experts, including Samuel Latham Mitchill, a professor of natural history at Columbia College, and the aptly named Capt. Preserved Fish, who had “been acquainted with the commerce in oils for thirty-three years, and was ten years a whaler.” The plaintiff’s side called few experts (although several fishermen who happened to be in the courtroom were sworn in and deposed), and relied instead upon the native wit and oratorical talent of counselor-at-law William Sampson.
These were considerable. An Irish patriot driven into exile by the English, Sampson had arrived in New York in 1806 at age 43, already a skilled polemicist, satirist, lawyer, and shorthand reporter. In Is a Whale a Fish? he played a double role: He was both a counselor for the plaintiff and the author of the pamphlet. It was a stunt he had pulled off before. He published more than a dozen trial pamphlets, including an 1808 case in which he defended an African-American charged with having fathered a white child. No doubt the pamphlets earned Sampson a little money, but the credit they added to his reputation as a man of letters may have been a more powerful motive.
Sampson was learned and clever, and he liked to show off. He enjoyed sporting with Capt. Fish’s claims to intimate knowledge of whale anatomy:
The witness [Fish], with respect to the fins, observed, that they were not strictly fins, but were often called arms, (or what you please,) on each side . . .
Q [Sampson]. Having arms, we would naturally look for the hands—has it any hands?
Witness seemed to incline to the affirmative.
Q [Sampson]. If so, could it do as I do now, (taking a pinch of snuff.) . . .
Later, Sampson repeated the trick on Professor Mitchill, who attempted a comeback:
Q [Sampson]. If, then, they are provided with hands and arms, it is natural to expect fingers and thumbs. . . . if so, could they use them for ordinary purposes, as to thread a needle, or do this? (taking a pinch of snuff.)
The witness [Mitchill], after some consideration, observed that these extremities were covered with a membrane or web.
Q [Sampson]. Like people that wear mittens.
When Mitchill mentioned the manatee, which also has handlike bones in its flippers, a cascade of erudition burst from Sampson: “Your description of the manati seems to justify Berosus, the Chaldean antiquary, who lived in the time of Alexander the Great, as you know, in what he relates of Oannes, who came daily out of the Red Sea with a man’s head under his fish’s head, man’s legs under his fish’s tail, and man’s hands under his fins.” After a few pages’ worth of Sampson’s esoteric babble, which included morsels of Greek, Syriac, and Chaldean, Mitchill interjected, testily, “May it please the court, I am here like a thirsty soul, ready to drink of the knowledge that flows so copiously from so many learned sources.”
The jury found for Sampson’s client. Whales were fish. (Soon after the verdict, however, the legislature amended the law to specify that whales weren’t fish, and the fish-oil inspector resigned in disgust.) Inspired by what he had learned about aquatic mammals, in notes at the end of his pamphlet Sampson suggested as a municipal improvement that dolphins should be welcomed into New York’s Gowanus Bay, where they could provide milk, help put out fires, and assist in marine defense.
Early trial pamphlets sometimes provided legal doctrine as well as entertainment. As late as the 1833 Rhode Island murder trial of Rev. Ephraim K. Avery, practicing lawyers cited trial pamphlets as precedent. When Avery’s lawyer challenged the government’s right to introduce new evidence during the rebuttal phase, the attorney general replied by citing the 1806 Boston trial of Thomas O. Selfridge and the 1820 New York trial of Robert M. Goodwin. Neither were appellate decisions, but the popular Selfridge case was often cited to explain the law on killing in self-defense, and the Goodwin pamphlet featured at the back an index of legal questions “decided” by the case. Nevertheless, Avery’s lawyer thought that citing a trial pamphlet was shoddy, and he said so: “I must take the liberty to say, that I never was in a place so respectable in appearance, which was so lean in law books.” The judge ruled against him.
But time would rule against the judge, and against the intellectual prestige of trial pamphlets. As American law matured, its hierarchies grew more rigid, and reports of lower-court trials became less useful to lawyers because they were increasingly trumped in the courtroom by reports of appellate decisions. Modern law reporting had begun in 1789 with a volume of Connecticut decisions by Ephraim Kirby. In 1804 Massachusetts appointed a reporter to its Supreme Judicial Court, and the U.S. Supreme Court appointed an official reporter in 1816. In the early years, these reporters made their living from sales of their published reports, the same way that reporters of lower-court trial pamphlets did. But soon the government was offering salaries to official reporters of appellate cases.
Stenography was becoming a profession, adjunct to but distinct from the law. Ambitious young men still learned shorthand to smooth their entry into the professional class, but the glamour of William Sampson’s avocation was fading. It was declining from a genteel skill to a useful, common one. Only the reporting of appellate decisions was institutionalized, however, and the reporting of lower-court trials began to require a certain amount of financial scrambling. In an 1834 pamphlet of a divorce case, the author-stenographer John Lomas advertised that he “also gives lessons in shorthand at his office” and could be hired to report New York trials. In an 1888 self-help manual titled How to Succeed as a Stenographer or a Typewriter, Arthur M. Baker warned young reporters to reckon carefully the odds that they would be paid for their services, particularly in divorce cases in which the losing spouse would be liable for expenses. Baker also advised them to avoid “stimulants.” Evidently stenographers were no longer a class of men who could be relied upon to come to work sober.
Happily, while the legal establishment was losing interest in trial pamphlets, journalists were taking them up. In American cities in the 1830s, 1- and 2-cent newspapers for the working class abruptly challenged 6-cent newspapers published for merchants and political parties. As Patricia Cline Cohen explains in The Murder of Helen Jewett, an account of the 1836 killing of a New York City prostitute, the penny papers transformed the reporting of murder trials. To satisfy their unsqueamish readers, editors for the first time actively investigated crimes. James Gordon Bennett of The New York Herald pioneered by visiting Jewett’s brothel and tracking down witnesses who had not yet found their way to the police station or the courtroom. While the Herald was running the Jewett story on its front page, circulation tripled.
For a sensational trial, the penny papers sent reporters to the courtroom every day. During the trial they published daily installments, which they collected and issued as a pamphlet once it was over. The trial pamphlet blossomed. The most vivid and novelistic pamphlets are of trials that took place between 1830 and 1875: the trial of Richard P. Robinson for the murder of Helen Jewett (1836), the court-martial of Alexander Slidell Mackenzie for his role in the so-called Somers mutiny (1843), the trial of the Harvard professor John Webster for the murder of a Harvard benefactor named George Parkman (1849), and the trial of the Lincoln assassination conspirators (1865), among others.
Unfortunately, trial reporters became so proficient that they doomed the transcript as a popular medium. When Brooklyn minister Henry Ward Beecher, the brother of the author of Uncle Tom’s Cabin, was tried for his adulterous affair, or “criminal conversation,” with the wife of his young friend and protégé Theodore Tilton, the transcript was published in 50-cent installments that accumulated into three volumes containing “2,702 densely packed, double-columned pages,” according to Richard Wightman Fox, author of Trials of Intimacy: Love and Loss in the Beecher-Tilton Scandal. As a historian, Fox praises the transcript as “an archive of Victorian American culture and society.” Considered as books for lay readers, however, transcripts like these were unwieldy. In 1886, when eight anarchists were convicted of tossing a bomb into a group of policemen in Chicago’s Haymarket, they deputized a comrade to extract a concise history from the official record. Not even socialists expected the masses to read the whole thing.
What makes the best trial pamphlets so engaging is not the story they tell, but the suspense in the telling. Prosecution and defense fight over which pieces of evidence the jury may see, and once a piece of evidence is admitted, they fight over its meaning. Everything is presented with care, and nothing with certainty. In the 1833 trial of Rev. Ephraim K. Avery, for example, the man who discovered Sarah Maria Cornell’s body hanging from a stake among his haystacks gave the following testimony of his search of the dead girl’s carrying case:
I examined the bandbox. It contained clothing. I saw at the bottom of it, a small piece of paper, and a piece of pencil. I did not examine the paper, but think I should know it again. It was not a clean piece, but had the appearance of having been handled. (Witness being shown a slip of paper folded into a small square, declares it to be the same, in his opinion, which he saw in the bottom of the bandbox.)
Avery’s was the trial that kept Chauncey Cochran at home reading while his wife met her doom in the strawberry patch, and a paragraph like this suggests what held him. Why is the scrap of paper important? What does it say?
Over a loud protest by Avery’s lawyer, the judge eventually admitted the text of the note found in Sarah Maria Cornell’s bandbox. He stipulated that the jury could only consider it “as evidence to rebut suspicion of suicide,” but everyone in the courtroom must have known the jury would be tempted to draw broader inferences, because the note read as follows: “If I am missing, inquire of Rev. Mr. Avery, Bristol. He will know where I am gone. S. M. CORNELL.” It was dated December 20, the day of her death.
This is the kind of thrill that trial pamphlets offered. The narratives are adversarial at every level. What the prosecution is trying to prove almost always has a kind of emotional gravity, which makes witnesses eager to say what will help to convict. The mere idea that the prosecution’s case might be true—that a wife not only cheated on her husband but mocked the sacrament of marriage with an elaborate lie, or that a minister killed a woman who was not only his parishioner but his secret lover—provokes a sense of urgency, an anxiety that it might be true but not provable, and not punishable.
A canny defense opposes these feelings by judo rather than force. The strength of the emotions becomes an argument against the emotions themselves. The strategy of Avery’s lawyer is a model: “I never saw a jury placed in a situation where they were so likely to do wrong, with the best intentions,” he told the jury when he began to call witnesses. The reader begins to second-guess his haste to believe. Was his feeling of urgency a wish to decide the case before he understood the grounds for doubt? And then, made subtle by the competition for sympathies, the prosecution reminds the jury that wanting to believe a thing is no argument against its verity.
In his gruesome and entertaining bibliography The Annals of Murder, Thomas M. McDade lists 21 different pamphlets about the Avery case. It attracted attention because it was full of suggestive clues and unexpected interpretive twists. Consider, as a final example of the pleasures to be had in trial pamphlets, the knot in the rope around Sarah Maria Cornell’s neck.
A coroner’s jury inspected Cornell’s body the day after its discovery. “At first I did not observe the cord about her neck, it was so imbedded,” testified Williams Durfee, who served on the jury. “On looking closer, I observed the knot under her right ear. The cord passed twice round the neck. It was what farmers call two half hitches, and sailors, a clove hitch . . . . To tighten a clove hitch, the ends must be drawn apart horizontally. If the ends be drawn upwards it will not tighten.” If Durfee was correct about the kind of the knot and the way it tightened, Cornell could not have hanged herself unassisted.
The witness Benjamin Manchester also considered this knot to be a damning clue. Cornell had been a weaver. And yet the knot at her neck seemed to be an unusual one—more typical of a sailor, in Manchester’s opinion. According to Durfee’s testimony, a farmer would also have been familiar with the knot. But in both men’s comments, the implication is that a woman would not have known how to tie it.
The implication stood, unchallenged, until the defense called Louisa M. Whitney, its final witness before the rebuttal phase. Like the late Cornell, Whitney worked in a textile factory, and she performed a remarkable demonstration in the courtroom. She showed “the jury a harness knot and how it is made.” As the impressed stenographer noted in brackets, “It proves to be the same as a clove hitch”—the kind of knot around Cornell’s neck. Whitney testified that weavers tied such knots routinely in the course of mending their harnesses: “We call them harness knots. I never heard any other name.”
In other words, factory women knew how to tie the same knots that farmers and sailors did, but because men and women used different terms and did not work together, the men had underestimated the women’s rope-handling knowledge. The prosecution scrambled to find weavers who mended their harnesses with simpler knots and were willing to swear ignorance of clove hitches, but the damage was done. The moment a woman tied a clove hitch before the jury’s eyes, an important part of the case against Avery unraveled.
The clove-hitch testimony hardly proved Avery’s innocence. It was easy for his lawyers to discredit much of the evidence against him. But the note in Cornell’s bandbox and a few letters she received from him cast a long shadow. Not guilty? In the best trial pamphlets, the lapse of a century and a half has done nothing but sharpen the doubts.