The Murder of Jim Fisk for the Love of Josie Mansfield

by H. W. Brands

  On Monday the curious return in greater numbers than ever. All seem certain that the trial will come to a conclusion this day, and probably this morning. The court officers apparently expect a quick verdict, for, in contrast to previous days, when they valiantly held the masses back, today they let everyone in. The seats are taken in an instant after the ten o’clock opening of the doors; the comparative laggards clog the aisles, crowd the entrances, and press close behind the tables where the defendant and the lawyers sit.

  Stokes again seems hopeful, but his weariness is apparent. He chats casually with Tremain and McKeon but without any real spark. He seems exhausted and old; observers in the courtroom can hardly imagine that this is the same man who set Josie Mansfield’s young heart racing.

  Judge Ingraham enters at ten thirty. The bailiff summons the jurors. Their names are called; each signifies his presence. Ingraham asks the foreman if they have agreed on a verdict.

  The foreman replies that they have not. Their positions remain unchanged from Saturday. They have argued and argued, but their differences are irreconcilable.

  Ingraham nods gravely. He reiterates why he has held them so long, citing the seriousness of the offense and the importance of the trial. But he accepts the foreman’s judgment that agreement is impossible. He thanks the jury members for their diligent service and dismisses them. The trial has failed.

  Newsmen buttonhole the jurors as they leave the courtroom. No vow of secrecy binds them, and various members explain that on the first ballot, taken thirty minutes after they received their charge from Judge Ingraham, seven voted to convict on first-degree murder, while two insisted on the lesser crime of manslaughter—an alternative allowable under New York law. Three contended that the homicide was justified. The five dissenters joined forces around manslaughter, but there the deliberations stuck. Thirty-six hours later they remained stuck.

  Stokes greets the verdict with tempered relief. He will not hang, not yet anyway. But neither will he be released. The deadlocked jury leaves him in the same position he has been in for six months—and in the same location: Judge Ingraham orders him back to the Tombs.

  The city sighs unhappily at the result. No verdict is the worst verdict of all. Conviction has been preferred by those who disbelieve Stokes and Josie or, for one reason or another, admire Fisk. Acquittal suits those who find the Stokes-Mansfield version credible or who think Fisk had it coming. A mistrial yields no satisfaction whatever.

  But court watchers in New York are not entirely bereft. Bill Tweed hasn’t committed any capital crimes, so far as investigators of the Tammany ring can tell, yet he has committed innumerable offenses against property and propriety. For years Tweed and the ring have been constructing a new county courthouse for New York, and the longer they have built, the further the work appears from completion and the more money the project absorbs. The projected price tag of a quarter-million dollars has swollen past thirteen million, and the building remains unfinished. Invoices for the work have gradually come to light: $8,000 apiece for windows, $1.5 million for plumbing and lighting fixtures, $500,000 paid to one plasterer for some interior work and then $1 million to the same plasterer to redo the work, $800,000 to a carpenter, lesser sums to several dead men kept on the payroll. The contractors themselves haven’t pocketed the greatest part of this money; most gets kicked back to Tweed and the ring, who have grown immensely wealthy off the public pork.

  The grafting attracts attention. Thomas Nast draws pictures for Harper’s Weekly; it was Nast who created the American version of Santa Claus, with rosy cheeks, fat belly, and full beard. And it is Nast who goes after Tweed. The Tammany boss actually does look like Santa Claus, but Nast draws him darker and much more dangerous. The Times, meanwhile, has gathered the story of the courthouse fraud, employing leaks from Tammany insiders who wanted a larger share of the graft. Times publisher George Jones knows a good story when he discovers one, and he releases the tale of the Tweed scandal in several parts, to maximize its effect on circulation.

  Tweed and the ring respond by offering Jones a million dollars to kill the story. Jones rejects the offer—and adds it to the story. Tweed offers Thomas Nast half a million, which is likewise spurned. Tweed takes Nast’s rejection harder. “I don’t care a straw for your newspaper articles,” he says. “My constituents don’t know how to read, but they can’t help seeing them damned pictures.”

  “Tweed and his gang are doomed,” Governor Samuel Tilden, who has been elected on a catch-the-crooks platform, promises. “Before many days pass it will be made so hot for the arch robber that New York will not hold him.” A grand jury, convened amid the Stokes proceedings, delivers a two-hundred-count indictment against Tweed and the ring. Readers of the New York papers catch the latest developments in the Stokes case one day and in the Tweed case the next. Most know that Tweed consorted with Fisk before the latter’s demise; many guess that the death of the one has made the fall of the other more likely.

  Stokes’s second trial starts in December 1872. The lawyers are the same as before, but the judge is different. Douglas Boardman suffers neither fools nor feckless jurors; he is determined that there will be a verdict this time, and he holds the two sides to a swifter selection of a jury and a closer adherence to their central arguments. The testimony recapitulates what has gone before; little new evidence is adduced.

  On January 5, 1873, the defense concludes its arguments. Lyman Tremain stresses the doctrine of reasonable doubt. The prosecution summarizes the state’s case, with counsel William Beach asserting that any doubt of Stokes’s guilt is unreasonable. Judge Boardman charges the jury. He reminds the members that Stokes, not Fisk, is on trial. He says that Stokes’s testimony, being more directly self-interested than that of other witnesses, must be treated with greater caution. He reiterates that the killing is not at issue, only the degree of culpability. Stokes can be found guilty of murder in the first degree or manslaughter in the third degree, or the homicide can be judged justifiable. In the strongest language he can muster, Judge Boardman urges the jury to reach a verdict. The question, he says, is a simple one to honest men.

  The jury retires at ten past eight in the evening. Few in the audience expect a verdict that night, and most go home. The resolute, however, are rewarded. A little past eleven Judge Boardman returns to the courtroom and takes his place at the bench. The prisoner is brought in. The jury is summoned.

  “Gentlemen, have you reached a verdict?” the clerk of the court inquires.

  “We have,” the foreman answers.

  Stokes is ordered to stand. The jury also rises.

  “Prisoner, look upon the jury,” the clerk directs. “Jury, look upon the prisoner.”

  The twelve jurors gaze at Stokes. He slowly lifts his eyes toward them.

  “Gentlemen of the jury, how say you? Do you find Edward S. Stokes, the prisoner at the bar, guilty or not guilty?”

  “Guilty of murder in the first degree.”

  Stokes shudders. His sister shrieks, but as her voice dies away the room is perfectly still.

  After a long frozen moment the jurors sit down. Stokes slumps into his chair. Judge Boardman, appearing relieved and not a little surprised, thanks and discharges the jury.

  Stokes’s shock gradually turns to anger. He faces the private prosecutor. “Mr. Beach,” he says bitterly, “you have done your work well. I hope you have been paid for it.”

  District Attorney Fellows answers Stokes by declaring that Beach has served reluctantly and without any fee from the family or friends of Jim Fisk.

  “Not from Jay Gould?” Stokes demands disbelievingly.

  He gets no answer from Beach. Fellows, who thanks his associates for their diligence, says he has had enough of the prosecution business and is retiring. The seamy side of human nature has taken its toll.

  Stokes is led toward the door, his anger growing by the second. As he passes Beach, he appears about to fly at his nemesis, and Beach’s co-counsel gather around to protect him.


  One of the jurors, on exiting, leans over to defense attorney Tremain. “I hope that you do not feel in any way bad against us, as we tried to do our duty,” the juror says. “I am sure you did yours, and worked as hard for Stokes as if he was your own son.”

  “I have nothing to say,” Tremain replies. “But how did you stand on the jury?”

  “I do not think I have any right to state that, sir,” the juror responds.

  “Oh, there is no harm,” District Attorney Fellows interjects. “Now it is all over you may speak your mind.”

  “Well, we stood, going out, ten for conviction and two for acquittal.”

  A junior counsel on Stokes’s side blurts out: “Yes, and those two gave in like cravens and cowards.”

  Tempers flare, and a fistfight seems likely. But Fellows has another purpose. The district attorney approaches Stokes. Tears are seen rolling down the prosecutor’s cheeks. He holds out his hand. “Ned, I hope you have no hard feelings against me,” he says. “I did only my duty, and did not try to exceed it, as God made me.”

  Stokes rejects the hand. “I hear all you say, and I suppose you think it’s all right,” he says. “But a verdict given on perjured testimony is a villainy that no one will countenance—never, never, so long as the world stands.”

  The news of Stokes’s conviction races ahead of him along Centre Street as he is walked back to the Tombs. His fellow prisoners fall silent when he passes their cells. The petty offenders observe him with indifference, but several prisoners held on murder charges appear deeply worried. Conventional wisdom among the malefactors of the city is that a New York jury can never agree on a charge as serious as murder. The counterexample of Stokes gives them sobering pause.

  He falls asleep quickly in his private cell and is allowed to slumber the next morning till nine. He washes, eats breakfast, and is readied for the return to the courtroom for sentencing.

  The crowds outside the court are larger than ever. They have trampled the wet snow in City Hall Park and made the lawn a morass. They discover that entry into the courtroom is hopeless, as elected and appointed officials of the city and county have claimed all the available seats for themselves and their friends. But hundreds cram into the hallways and vestibules, to be out of the snow and somewhat closer to the events.

  Stokes enters at half past ten, better dressed than he has been during the argument phase of the trial. A blue overcoat covers a dark suit; black kid gloves encase his hands. He struggles to hide any emotion; he is steeling himself for the worst.

  But his brother, who stands beside him, lacks comparable control. Dressed in black, as if already in mourning, he weeps as if at his brother’s funeral. The audience looks on and whispers in amazement.

  The entry of Judge Boardman silences the room. The prisoner is asked to stand. “Edward S. Stokes,” the clerk inquires, “what have you to say why sentence of death should not be pronounced upon you?”

  Stokes answers clearly and deliberately: “I can only say that I am innocent of the crime of which I now stand convicted. I did not intentionally violate any laws of the land.” He looks around the court. “I know that all the testimony that was given for the defense was viewed lightly by the jury. I feel convinced of that. I know that public clamor has been aroused against me from the frequent murders in New York City. I know that the evidence of Thomas Hart”—the doorman at the Grand Central Hotel—“upon which I have been convicted, is false from beginning to end. I believe that the prosecution knew it.” He speaks directly to the judge: “That is all I have to say. I hope you will make the sentence as brief as possible.”

  He turns to sit down, but Tremain touches his elbow to let him know he must continue to stand. Briefly embarrassed, he faces the bench once more.

  Judge Boardman looks out on the crowd, the representatives of the people of New York, and then at the prisoner. “You have been defended by the most eminent counsel with extraordinary skill and devotion,” the judge says. “You have been supported and sustained by the sympathy of loving relatives and ardent friends. All that wealth, affection, or industry could render has been cheerfully and well done. A jury, carefully selected, of intelligent and upright gentlemen, have listened patiently and kindly to your own account of this most terrible act, as well as to the other evidence that has been put in in your behalf. They have found you guilty of murder in the first degree—the highest crime known in our law—in having caused the death of James Fisk, Jr., one year ago today.”

  The judge says he concurs in the decision of the jury. He asserts that he has made no errors that he is aware of in determining the admissibility of evidence. He states that he has given the prisoner the benefit of the doubt at every turn of the trial.

  One responsibility is left for him to fulfill. “To me remains the painful duty of pronouncing the judgment of the law, not alone as a punishment of your crime, but also that, by your example, others may take warning. I am sad over your unhappy fate—so young, so attractive in person, with so many fountains of joy yet untasted. Still greater is my sorrow to realize the unmerited anguish you have brought upon your family and friends. It is a frightful legacy to leave to a family—a specter that death alone can banish.”

  The judge speaks very slowly now. “Edward S. Stokes, in obedience to the requirements of the law, this court orders and directs that you be taken hence in the custody of the sheriff of the City and County of New York to the prison from whence you came; that you be there confined in close custody by said sheriff until the 28th day of February, 1873, and that on that day, between the hours of eleven o’clock in the morning and three o’clock in the afternoon, you be hanged by the neck until you are dead. May God have mercy on your soul.”

  Stokes is stunned. He is led from the courtroom in a daze and delivered back to the Tombs. The other prisoners avoid him, as though his hopeless condition might be contagious. With the city abuzz at the thought of a hanging, his lawyers’ appeals for writs of error meet one rebuff after another. The corridors of his prison grow darker than ever; the specter of the gallows rises before him. Convinced that the forces of Erie and Tammany still determine justice in New York, Ned Stokes surrenders to his fate.

  And then, with the hangman almost readying the noose, the New York Supreme Court finds in Stokes’s favor. The court rules that the jury in the second trial was incorrectly charged. Judge Boardman failed to make clear that murder, under New York statute, requires an explicit intent to kill. Stokes certainly meant to harm Fisk, but whether he sought to kill him remains unproved, the court says. The conviction is voided; Stokes shall have a third trial.

  Stokes’s brother carries the glad tidings to the Tombs, wanting to witness and share the emotions of the eleventh-hour rescue. But the jailhouse grapevine relays messages faster than any human courier. A guard tells Stokes he isn’t going to hang. Stokes takes a moment to absorb the guard’s words and nearly faints as the welcome meaning sinks in. He can’t speak, he can’t breathe, he can barely hear or see.

  Gradually he recomposes himself. By the time his brother arrives, expecting a joyous reaction, Stokes presents the calm, unconcerned persona he has long preferred to show the world.

  Maybe it is a miracle. Maybe it is justice. Or maybe it is simply coincidence that Stokes’s reprieve comes amid the passing of the Erie and Tweed rings.

  Fisk’s death initially relieved Jay Gould of the liabilities attendant upon Fisk’s egregious professional manner and scandalous lifestyle, but it also deprived Gould of his staunchest ally at Erie headquarters. In the year since the murder, several members of the Erie board, in collaboration with dissatisfied shareholders, have mounted a challenge to Gould’s reign. They enlist a Civil War general who leads them on a march to the Opera House, where they physically remove Gould from his lavish offices before voting him out of the corporate presidency.

  Gould’s fall, after Fisk’s death, further weakens the third member of their triumvirate, Bill Tweed. Gould furnished the bail that let Twee
d sleep at home awaiting his trial on the corruption charges; with Gould’s overthrow from Erie, Tweed has to look to his own devices. His lawyers place one hurdle after another in the path of New York justice, but finally Tweed is convicted and sentenced to twelve years in prison.

  The downfall of the Erie and Tweed rings is accompanied by a hurricane in the economy at large. For all the financial shenanigans of Fisk and Gould, the American economy has grown rapidly since the Civil War. But fat years eventually give way to lean, and in the autumn of 1873 the country suffers its first full-blown panic of the industrial era. Jay Cooke—the “good” Jay of Wall Street, renowned and respected for floating the bonds that supported the Union government during the war, in contrast to the bad Jay Gould of the Erie war and the gold conspiracy—finds himself burdened with millions of dollars of Northern Pacific Railroad bonds he can’t unload, and when Cooke & Co. closes its doors, the financial markets seize up. The panic spreads to the stock market and then to the economy as a whole. The railroad industry drives over a cliff into massive receivership; factories damp their furnaces and bar their doors; inventories pile up in warehouses; real estate prices collapse; savers lose their nest eggs in bank closures; workers lose their jobs. Panics in preindustrial America were sometimes sharp but never long or especially wide. When the nation’s economy rested on agriculture, people could always eat from their own gardens even if they couldn’t buy from their neighbors, and they could live in their own houses even if they couldn’t afford to paint or repair them. Now that the economy depends on industry, downturns are far more devastating. Laid-off workers lack money for food and rent; they and their families soon find themselves hungry and homeless. And the growing interconnectedness of the economy causes panics to ramify far from their origins. No one knows it in 1873, but the panic of this year will produce a nationwide depression lasting the rest of the decade, with bloody strife setting labor against management and political divisions pitting one half of the country against the other half.