On this date in 1873, William Foster — who spent two years warding off execution — finally succumbed to New York’s hangman.

Foster’s case was a long-term headline-grabber: he drunkenly accosted a couple of perfect strangers on the Broadway Line (think horses, not trains), then smashed the man of the party, Avery Putnam, with a conductor’s device going by the sinister name of “car-hook”. His case turned, both juridically and in the public eye, on the question of whether Foster had formed an “intent” sufficient to justify a first-degree murder conviction; the killer’s own jury later joined appeals for his reprieve, having felt buffaloed by public opinion in the immediate aftermath of the crime.

This case also clearly had a significant class component — a respectable gentleman randomly slain by a workingman — and the newspapers’ coverage frequently touches on obvious bourgeois anxiety, or uncertainty as to just how badly those of Foster’s socioeconomic position would take the hanging.

These and other themes of the media coverage will look very familiar a century and a half later. The only things missing are the tweets.

The Editorial Board

New York Times, May 28, 1871

Abolish the Car-Hook.

… the fatal weapon which slew Mr. Putnam … a weapon which we know to be deadly is so familiar to the hands, and possibly the heads of a large portion of the population, that they think nothing of using it at all. Of course the statement on which we found these conclusions may be incorrect. But it seems probable enough, and is confirmed by the numerous cases of assault with car-hooks reported since the Putnam murder. Before the light of that great tragedy brought into unusual prominence the fatal tool, it is fair to presume that it was not less active in its work of evil than at present.

It is not pleasant, then, to reflect that every time we travel on a horse-car whose conductor or driver hapens to be a trifle drunk, or unusually passionate and vindictive, we run a certain risk, slight it may be, still an appreciable risk, of being brained with an instrument to which the assailant’s hand instinctively turns. And since temptation is the firmest ally of crime, we might very properly begin our street-car reform by abolishing the car-hook altogether … Even if the replacing appliance be less convenient for the purposes, and less satisfactory in its workings, it is better that the driver should have a little more trouble and delay than that he should have constantly at hand a means and a provocative to murder. We do not doubt, however, that the present model of car-hook may readily be improved on, and at the expense of a little ingenuity, made not only harmless, but more complete.

The Murderer

New York Times, June 4, 1871

FOSTER’S APPEAL.

The Condemned Prisoner Reviews His Case.

He Never Intended to Kill Mr. Putnam — The Verdict of Death the Result of Public Resentment — He Thinks He Has Been Unjustly Treated.

TO THE PUBLIC: Sufficient time has elapsed since my conviction for the murder of Mr. Putnam to allow me to make that appeal to the cool judgment of the public which my counsel could not make in a court-room, oppressed by the usual legal formalities. I have not much to say, but in my awful position what little appeal I make is invested with a terrible importance, to me at least. After a short and impartial trial, before the case was submitted to the jury, Judge Cardozo* charged almost directly in my favor — at least, in modification of the verdict. He directed the jury that a fit of passion did not imply the requisite degree of malice justifying a verdict of murder in the first degree. He almost as much as told them that in my case there was no evidence proving that I intended to kill Mr. Putnam — that death was a result I never contemplated, and that however furious the resentment of the public might be, it would not be in accordance with their oath to convict me of a malicious purpose to kill Mr. Putnam.

The jury was evidently inclined to regard this direction of Judge Cardozo, but they were afraid to abide by it thoroughly. Public opinion was too strong; and because, I believe, it did not stop to consider my case coolly, it compelled that jury to bring me in guilty of downright murder in the first degree. But even then they went as far as they dared in recommending me to mercy. They recommended me to mercy because they felt that there was something wrong with the rest of their verdict, and they wanted to make the best balance they could without taking any responsibility themselves. Now I make this appeal from my condemned cell, because the public are beginning to believe with Judge Cardozo. Judge Cardozo said the truth. He said I never meant to kill Mr. Putnam. He knew from the very evidence that there was nothing further from my intention — and it is the intention which makes the crime.

What are the facts of the case? I had been drinking heavily — God knows I can’t excuse that. I was stupid drunk, mad drunk, and I got into a drunken difficulty with a strange man. That was Mr. Putnam. He said something which aggravated my drunken madness. Without any thought, without any calculation, on the impulse of blind fury, I struck him with the first thing that came to hand. That blow was never intended to kill Mr. Putnam. It was struck with hardly any intention at all. It was the work of a madman, not of a deliberate murderer. It was struck with no recognized weapon — just the first thing that came to hand. If it had fallen on the top of his head it would probably never have killed him. But it did kill him, and for the blow which I struck, without having any definite intention, resulting in his death, I am condemned to death in revenge. No one will pretend to say that I deliberately set about to effect Mr. Putnam’s death. I made no attempt to escape. I identified myself. I claimed to have struck him, having no idea, no earthly notion that my drunken blow would result in bringing about my conviction of murder.

Public resentment and exasperation brought about the verdict. There are men in the Tombs who have killed others soberly, in cold blood, and there has been no hue and cry after them. A man who had a quarrel with another and then went home and procured a knife with which he came back and stabbed him to death, deliberately and in cold blood, was sent to Sing Sing for four years the other day. There are others in this prison convicted of murder with weapons known to be deadly — so that their intentions in using them could not be doubted a moment — and they are safe. … I was tried out of my turn … while the public was resolved to have my blood as soon as possible. Out of these I alone am selected to undergo capital punishment, because mine was a sensational case.

No one can doubt the truth of this, and it is because this is the truth known to God and sworn to by me in the shadow of death, that I make my appeal to the public. I am doomed to die because a wicked drunken freak resulted in the death of a man, whom I no more intended to harm seriously than I would my own child … Is the recommendation to mercy to mean nothing? Does anybody refuse to see in it the protest of the jury against the pressure which forced them to bring me to the gallows? The public, which was furious, compelled the jury to act as it did, and I make my appeal, therefore, to the public.

I implore the public to consider my case, now that I am sentenced, and any evasion of law in my favor is impossible, coolly and dispassionately. I appeal to the public to be just and fear not. And what I have to say in my behalf I say with the solemnity of my situation. I make my appeal as a condemned murderer, sentenced to a speedy and ignominious death, helpless and powerless, but confident that the same feeling which on an impulse secured my conviction, will, when cool and deliberate, do even me proper justice.

WILLIAM FOSTER.

The Widow

New York Times, Nov. 22, 1872

THE PUTNAM MURDER.

The Widow Sues the Railroad Company for Damage.

The murder of Avery D. Putnam, for which William Foster now stands condemned, has been revived in the Courts in a new form. it appears that Mrs. Putnam, the widow, some time since, instituted a suit against the Broadway and Seventh-avenue Railroad Company, to recover damages to the extent of $5,000, (the limit of the law.) for the loss of her husband, which loss she charges to have been the result of the culpable negligence of the Company and its servants.

[she won -ed.]

The Minister

New York Herald-Tribune, March 6, 1873

(One letter among more than an entire page’s worth of clemency petitions the Tribune reprinted, with a note of scorn.)

LETTER FROM THE REV. DR. TYNG.

This young man has been familiarly known to me from his childhood. He grew up in the Sunday school and congregation of my church … of which his family have made a part since his birth. He was always a quiet, orderly, and good boy — he grew up an industrious and well behaved young man — he has never been a bad man or a drunkard.

The whole circumstances of this sad event which has placed him in his present position, he has personally related, very minutely, to me … I have visited him regularly as his pastor. He has presented himself to me as a gentle, quiet, penitent young man, and I have had much encouragement in visiting him.

…

Foster does not in the least excuse himself from the just infliction and endurance of his sentence, if it be the will of God that he must meet it …

I really think the young man entitled to a commutation of a sentence for willful murder in the first degree … He acted in blind haste, with no malicious intent, and he has groaned in anguish over the remembrance of his crime. His honored parents and excellent family, his young wife and little children, his own industrious life, his really quiet and habitual deportment, his expressions of anger, hostility, or self-defense, unite to present his case to me as one peculiarly appropriate for Executive mercy. … I do not know what efforts others may make in his behalf; but, as the pastor of his family — and of all his early life, and as now his gratefully accepted pastor in the hour of his sorrow — I feel compelled to implore for him the mercy which you alone can exercise.

Stephen Tyng

[Tyng, an Episcopal, was a celebrity preacher in the Big Apple, and built an early “megachurch”. He is the namesake of, but unrelated to, the man who founded the U.S. National Park System — Stephen Tyng Mather. -ed.]

The Humorist

New York Herald-Tribune, March 10, 1873

Sir: I have read the Foster petitions in Thursday’s Tribune. The lawyers’ opinions do not disturb me, because I know that those same gentlemen could make as able an argument in favor of Judas Iscariot, which is a great deal for me to say, for I never can think of Judas Iscariot without losing my temper. To my mind Judas Iscariot was nothing but a low, mean, premature Congressman.** The attitude of the jury does not unsettle a body, I must admit; and it seems plain that they would have modified their verdict to murder in the second degree if the Judge’s charge had permitted it. But when I come to the petitions of Foster’s friends and find out Foster’s true character, the generous tears will flow — I cannot help it. How easy it is to get a wrong impression of a man. I perceive that from childhood up this one has been a sweet, docile thing, full of pretty ways and gentle impulses, the charm of the fireside, the admiration of society, the idol of the Sunday school. I recognize in him the divinest nature that has ever glorified any mere human being. I perceive that the sentiment with which he regarded temperance was a thing that amounted to frantic adoration. I freely confess that it was the most natural thing in the world for such an organism as this to get drunk and insult a stranger, and then beat his brains out with a car-hook because he did not seem to admire it. Such is Foster. And to think that we came so near losing him! How do we know but that he is the Second Advent? And yet, after all, if the jury had not been hampered in their choice of a verdict I think I could consent to lose him.

The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try to respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attaching to a melting heart and perfectly macaronian bowels of compassion.

I have had no experience in making laws or amending them, but still I cannot understand why, when it takes twelve men to inflict the death penalty upon a person, it should take any less than twelve more to undo their work. If I were a legislature, and had just been elected, and had not had time to sell out, I would put the pardoning and commuting power into the hands of twelve able men instead of dumping so huge a burden upon the shoulders of one poor petition-persecuted individual.

Mark Twain

The Future Attorney General

New York Times, March 20, 1873

THE FOSTER CASE.

Letter to Gov. Dix by Edwards Pierrepont.

Judge Edwards Pierrepont has addressed a letter to Gov. Dix on the case of Foster. He says:

…

The decision of the Court of Appeals affirmed the judgment of the court below, whereby William Foster was condemned to be hanged for the murder of Avery D. Putnam. But that decision would have been precisely the same if Mr. Putnam had appeared in court, and proved that he was still alive … The rigid rules of law do not allow an appellate court to look beyond the record, even though the court might behold the living man, for whose murder the accused was condemned to die.

It is for this very reason, and to meet cases like the one before you, that the high Executive is clothed with extraordinary powers, adequate to correct all such mistakes, and to consider all facts and circumstances outside of the legal record, in furtherance of the highest justice, and beyond the functions of a court of law …

If William Foster is put to death for the premeditated murder of Mr. Putnam, very few of the reflecting community will not believe that he was executed for a greater crime than he in fact committed, and, to avoid the repetition of such an act of injustice, the aggrieved sentiment of the public may demand the abolition of the death penalty entirely.

Foster was convicted a few days after Mr. Putnam died, while the public mind was fevered and alarmed, and the verdict was not in accordance with the real convictions of the jury, nor in harmony with any reasonable deductions from the evidence …

the hanging of Foster would savor more of vengeance than of justice … and the reaction likely to take place in the public mind might cause a repeal of those laws which are now a wholesome restraint upon evil men.

The Aftermath

New York Herald, Nov. 1, 1873

TO THE EDITOR OF THE HERALD:

Justice can no longer be said to be blindfolded in New York. The verdict in the case of Stokes [murderer of bankster James Fisk -ed.] is a mockery and a farce. Jack Reynolds said, “Hanging for murder is played out in New York;” but his assertion would have been much truer if he ahd added, “for the rich.” If Stokes was not guilty of murder in the first degree then the hanging of Foster was nothing but downright murder. Stokes had not the slightest excuse, while Foster had a great many … The jury must have been influenced by some outside influence or there must have been some flaw in the presentment of the case by the prosecution. This verdict should cause our citizens to blush. It shall be recorded in the history fo our city as an everlasting disgrace and humiliation. Our citizens, it is true, are looking on patiently at this way of administering law; but the time will yet come when they will take the administration (if driven so far) of it into their own hands and adopt the rule of the pioneers of the West for murders – viz., “Lynch law.”

AN ADMIRER OF THE HERALD.

* Father of eventual Supreme Court justice Benjamin Cardozo.

** Congress-bashing is a timeless sport, but the body was in particularly low esteem at this moment because of the Credit Mobilier scandal.

On this day..

• 1817: Ann Statham, infanticide
• 1952: The last executions in the Netherlands
• 1868: Charles Martin and Charles Morgan lynched in Cheyenne, Dakota Territory
• 1706: Mary Channing, at the Maumbury Rings
• Unspecified date: Mariotto Mignarelli, proto-Romeo
• 1791: Alessandro Cagliostro condemned
• 1963: Frederick Charles Wood, "Let me burn"
• 1857: Gaspard Matraccia, parrot-lover
• 1644: Mary Latham and James Britton, adulterous lovers
• 1979: Gu Shan, of The Vagrants fame
• 1804: Louis-Antoine-Henri de Bourbon-Condé, duc d'Enghien
• 1556: Thomas Cranmer, architect of Anglicanism