Unwritten Laws of the Past and the Freedom to Kill

Dan Sickles, congressman from New York, was married to the most beautiful woman in Washington but his other interests, including his mistresses, often kept him away from home. His lonely young wife, Teresa, found comfort in the arms of Philip Barton Key, D.C. District Attorney and son of poet Francis Scott Key. When Sickles learned of their affair he armed himself and confronted Key on the street. Blinded by rage he shot and killed his wife’s lover. Was it premeditated murder or temporary insanity?

Teresa Sickles

When Daniel Sickles married Teresa Bagioli in 1852, she was 15 years old, and he was 33. She was the daughter of his music teacher and had known Sicles all her life. Her family refused to give their consent to the marriage, but undeterred, the couple was married in a civil ceremony. Seven months later, their only child, Laura Buchanan Sickles was born.

Philip Barton Key

At the time of their marriage, Dan Sickles was an attorney and a New York Assemblyman, a rising star in the Tammany Hall Democratic political machine. Sickles also had a reputation as a ladies’ man. Though he loved his beautiful young wife, he continued his extra marital affairs including a long term relationship with Fanny White, owner of a well-known New York brothel. If Teresa knew of these affairs, she chose to endure them in silence.

Daniel Sickles

In 1856, Dan Sickles was elected to the U.S. Congress and moved his wife and young daughter to Washington D. C. The Sickles were very popular in Washington social circles. Teresa, beautiful, charming and well educated, was a perfect Washington hostess winning the admiration of men and women alike. But when they weren’t entertaining, Dan’s work and other interests kept him away and Teresa spent much of her time alone.

To ease her loneliness Teresa began spending time in the company of Philip Barton Key, Washington D. C. District Attorney and son of Francis Scott Key, author of “The Star Spangled Banner.” It began as innocent meetings on the street but soon became a romantic affair. When Dan was away, their trysts would end in the parlor of the Sickles’s home. Key rented a house in a poor section of Washington so they could meet in private and avoid detection.

In spite of Key’s precautions, their affair became common knowledge in Washington’s social circle. Dan Sickle seemed to be the only one in the city unaware of his wife’s romance with Philip Barton Key. That situation changed when Sickles received an anonymous letter giving the details of Teresa’s affair with Key stating “…I do assure you he has as much use of your wife as you do.” Sickles investigated and when he was convinced the story was true he confronted Teresa and made her sign a complete confession.

The following day, Sunday February 27, 1859, Key, unaware that they had been discovered, stood in Lafayette Park, across the street from the Sickles’ home waving a handkerchief to get Teresa’s attention. Dan Sickles saw the signal and went into a rage. He armed himself with several pistols and rushed into the square saying “Key, you scoundrel, you have dishonored my home; you must die.”

Sickles fired a pistol at close range but it only caused a glancing blow to Key’s hand. Key grabbed Sickles lapels, Sickles dropped the derringer he was holding and the two men grappled. Sickles pulled away and drew another pistol. In defense, Key threw the only weapon he had, a pair of opera glasses, at his opponent. Sickles fired again, hitting Key near the groin. Key fell to the ground and Sickles fired a third shot that struck Key in the chest. Sickles backed off then and onlookers took Key to a nearby house. He died soon after.

Trial: April 4-26, 1859

Dan Sickles had a team of high powered attorneys handling his case, including Edwin M. Stanton who later became Secretary of War. Sickles had the sympathy of Washington society, and if adultery could have been used as defense to murder he would have been easily acquitted. Instead, his attorneys argued that Teresa’s infidelity had driven him temporarily insane. The jury agreed and for the first time in American history temporary insanity was successfully used as a defense to the charge of murder.

Verdict: Not guilty

Dan Sickles had the support of the public who felt his action against Philip Barton Key was justified. Opinion changed dramatically that summer when Sickles took Teresa back and the two lived together again as husband and wife. This was considered a greater transgression than killing Key. Teresa never regained her position in society. She died of tuberculosis in 1867. Sickles went on to be a Union Major General in Civil War and lost a leg at Gettysburg. He died in 1914 at the age of 94.

Compare this to the treatment of Mrs. Kate Southern

The sad case of Mrs. Kate Southern! The beautiful, virtuous Georgia
wife, who, being maddened to insanity by the outrageous taunts
of a bad woman who had enticed her husband away, killed her
(Philadelphia, Pa.: Old Franklin Pub. House, 1878). McDade 894.

Dozens of cases invoking the “unwritten law” would be heard in American courts by the end of the 19th century, homicidal jealousy was limited 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 woman who was charged with murdering a rival for her husband’s affections in early 1878.

Images from an 1878 edition of the National Police Gazette.
According to the lurid news coverage, Kate had married her husband, Bob Southern, despite the active opposition of Narcissa Fowler (frequently described in the newspaper coverage as a “woman of notoriously lewd character”) who had been sexualyl intimate with Bob before, and after, his marriage. Though Kate knew about the affair and had been “unsettled and annoyed by the knowledge”, she seemed determined to keep Bob and Narcissa as far apart as possible. Narcissa actively tried undermining Kate’s marriage, including starting scandalous rumours about her and saying that “they would have no peace or satisfaction as long as (Narcissa) lived.”

Images from an 1878 edition of the National Police Gazette.
A few months after Kate and Bob were married, Narcissa confronted Kate at a party where, under the influence of the whiskey she had been drinking, she began insulting Kate using what one witness later described as “epithets too vulgar and obscene to be written or spoken.” After finally provoking Kate into a fistfight, Kate’s sister, Amorelli Hambrick got involved as well. Though Narcissa likely had no idea that Kate was armed with a knife, she learned this quickly enough when Kate stabbed her repeatedly. The newspaper coverage fails to mention whether Narcissa died at the scene or later but Kate promptly fled. Joined by her husband and other members of her family, she became a fugitive until a posse eventually tracked her and her husband down. After being returned to Pickens County where the stabbing occurred, Kate Southern was subsequently charged with murder. Her sister was charged as an accomplice while her husband was charged with helping her escape.

The legal defense that Kate received at her trial was far less spirited than what Images from an 1878 edition of the National Police Gazette. managed to arrange. Many observers accused Kate’s lawyers of mismanaging her defense but their legal options were fairly limited. There was certainly no question of seeking any kind of defense based on the “unwritten law.” Though husbands could claim that a wife’s infidelity was an attack on their “personal honour”, wives were expected to endure the extramarital affairs of their husbands in silence. Women could claim self-defense if they were being raped but killing an unfaithful husband or the other woman typically led to a criminal conviction. Presumably, the courts didn’t feel comfortable giving wives the same “license to kill” that husbands enjoyed.

And so it was with Kate Southern. It probably didn’t help that her defense attorneys failed to launch much of a defense on her behalf. Many of the newspaper reporters commenting on the trial openly criticized the lawyers for not calling any witnesses on Kate’s behalf or their failure to cross-examine many of the witnesses that were called. All that they were able to come with was a half-hearted insanity defense which failed to convince the jury. Her conviction hardly came as a surprise to anyone though the penalty handed down by the judge certainly was. Kate Southern was sentenced to death by hanging.

Almost immediately after news of the sentence got out, the campaign to save Kate’s life began to mobilize. Her attorneys mounted an appeal to Georgia’s Governor to commute the sentence. This included numerous depositions from Kate’s family members (including her husband) which attempted to show that she was provoked into killing Narcissa. It also helped that Kate had recently given birth and descriptions of Kate in prison with her baby where she awaited her execution helped the media campaign to save her life. Petitions with thousands of signatures (mostly women) were sent pleading for clemency.

The campaign worked. Kate’a sentence was commuted to ten years in prison to be spent in a Georgia prison camp. Her sister, Amorelli, was sent to the same camp to serve her own sentence. Thousands of supporters came out to watch the train that would take Kate to prison. As one newspaper description reported, “at all the towns through which the train passed, the people (ministers, gamblers, women, and all classes) crowded to the depots to see and express their sympathy for her, and at Atlanta, where a large purse was collected for her benefit, the excitement was so great that the car windows were broken.” Her husband found work near the prison and was even granted conjugal visits (Kate had two more children during her time in prison). After serving only three years of her sentence, she was granted a full pardon and allowed to return home.

Kate Southern largely faded into obscurity after she was released but her case continued to generate controversy. In the years that followed, more conservative newspaper editors accused Kate’s supporters of allowing her gender to save her from execution and argued against granting clemency for women committing murder. And there would be no more clemency. When Emma Simpson shot her estranged husband in 1919, believing that “the new unwritten law, which does not permit a married man to love another woman, will be my defense,” even Clarence Darrow couldn’t save her from being found “insane but guilty.”

While the number of cases claiming the “unwritten law” became less frequent by the 1920s, husbands committing murder to defend their “personal honour” still used the defense well into the 20th century. In many U.S. states, the law allowing husbands to kill “interlopers” was formally enshrined into legal statutes (thus making it the “written law”). When and where the law could be used became a major sticking point for many judges who insisted that husbands could only kill their wive’s lovers if it was done in the “heat of passion.” If the husband allowed time for his anger to cool and to become more reasonable, then any homicide committed afterwards became “deliberate revenge” and he could be prosecuted.

In Texas, for example, one statute held that, “Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.” In other words, the couple had to be caught in flagrante delicto for the killing to be legal (it was eventually repealed in 1974). Other states, including Georgia, New Mexico, and Utah passed similar law, almost all of which would be repealed by the end of the 1970s.

Today, while husbands are no longer so free to kill to avenge “personal honour”, the “temporary insanity” or “diminished capacity” defense is still around in one form or another. Perhaps fittingly these days, it is more likely to be used by women on trial for murdering their husbands due to domestic abuse (a.k.a. the “battered woman defense”) than vice-versa. Whatever the status of “unwritten law” today however, defense attorneys are still known to use it during murder trials simply because it might work. There is often no telling what a sympathetic jury might decide to do in cases where they regard the husband (or wife) as being fully justified in committing murder in the heat of passion.

And so, the legacy of Daniel Sickles and Kate Southern remains with us even today.

Sources

https://www.avoiceformen.com/series/unknown-history-of-misandry/men-going-their-own-way-in-1919/

http://drvitelli.typepad.com/providentia/2014/11/unwritten-laws-and-the-freedom-to-kill-part-2-of-2.html

http://www.murderbygaslight.com/2009/10/dan-sickless-temporary-insanity.html

The National Police Gazette

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1012&context=amtrials

Wallace State professor tells murder tale on Halloween Eve