1. Sources that set the context of New York City politics during Reconstruction beyond the prosecution of Boss Tweed and the campaigns against Tammany Hall, include Mohr, John C., The Radical Republicans and Reform in New York during Reconstruction (Ithaca, N.Y.: Cornell University Press, 1973)Google Scholar and Quigley, David, Second Founding: New York City, Reconstruction and the Making of American Democracy (New York: Hill and Wang, 2004)Google Scholar.

2. Examples include: “Report of the Committee of the Judiciary as to the examination into the affairs of the office of the District Attorney of the City and County of New York,” Assembly Document 183 (State of New York), May 7, 1872; “Report of the Select Committee appointed by the Assembly of 1875 to Investigate the causes of the increase in crime in the City of New York,” Assembly Document 106 (State of New York), February 17, 1876; and “Report of the District Attorney of the City of New York Relative to untried indictments,” Assembly Document 122 (State of New York), April 25, 1878. The Assembly Standing Committee on the Judiciary also investigated the suspected corruption of George G. Barnard and Albert Cardozo, justices of the Supreme Court, and John H. McCunn, a justice of the Superior Court, in 1872. Cardozo resigned, but the other two were removed from office in 1874.

3. For the intellectual and professional context of these emergent theories, see Janet Tighe, “A Question of Responsibility: The Development of American Forensic Psychiatry, 1838–1930” (PhD diss., University of Pennsylvania, 1983).

4. Elizabeth Cady Stanton filled New York's Apollo Hall with her speech condemning the verdict: “A Woman's Right to Divorce,” Times, May 19, 1870. For the context of Stanton's arguments in the wider bid for gender equality, see DuBois, Ellen Carol and Smith, Richard Cándida, eds., Elizabeth Cady Stanton, Feminist as Thinker: A Reader in Documents and Essays (Albany: New York University Press, 2007)Google Scholar. For contrasting interpretations of this case see Hartog, Hendrik, Man and Wife in America: A History (Cambridge, Mass.: Harvard University Press, 2000)Google Scholar; Basch, Norma, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley and Los Angeles: University of California Press, 2001)Google Scholar; and Ganz, Melissa, “Wicked Women and Veiled Ladies: Gendered Narratives of the McFarland-Richardson Tragedy,” Yale Journal of Law and Feminism 9 (1997): 255–303Google Scholar.

5. The verdict divided New York's medical and legal fraternity. See Mohr, James C., Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford, 1998), 164–73Google Scholar. On professionals' concern over defendants' manipulation of the period's emergent insanity theories, see Geller, Jeffrey L., Erlen, Johnathon, Kaye, Neil S., and Fisher, William H., “Feigned Insanity in Nineteenth-Century America: Tactics, Trials, and Truth,” Behavioral Sciences and Law 8 (1) (2006): 3–26CrossRefGoogle Scholar.

6. Foster, a thirty-seven-year-old horse car conductor, was executed at the “the Toombs” on March 21, 1873. For an account of the case and the unsuccessful clemency campaign, see The "Car-hook" Tragedy: The Life, Trial, Conviction and Execution of William Foster for the Murder of Avery D. Putnam: Governor Dix's Letters (Philadelphia: Barclay & Co. 1873). For a compendium of executions in the state, see Hearn, Daniel, Legal Executions in New York State: A Comprehensive Reference, 1639–1963 (Jefferson, N.C.: McFarland, 1997)Google Scholar.

7. Stokes was tried twice—the second time convicted and sentenced to death in February 1873, but the conviction was set aside and a new trial granted by the Court of Appeals on June 10, shortly after Frank Walworth's indictment. In October 1873 Stokes was retried, convicted of manslaughter, and sentenced to four years in prison. In 1884 he was pardoned by Governor Cleveland.

8. Anon., “Murder and Hanging—Examples Wanted—Strangle All Our Murderers Together,” Letter to the Editor, New York Times, January 14, 1873.

9. “About 50 percent of murder suspects were arrested, about half of those arrested were tried, and about half of those tried were convicted. As a result, convictions were obtained in only about 11 percent of all murders” (Monkkonen, Eric, “Homicide: Explaining America's Exceptionalism,” American Historical Review 111 (1) (2006): 89CrossRefGoogle ScholarPubMed). Even among northern cities, New York stood out for its jurors' reluctance to convict murderers. See Kuntz, William F. II, Criminal Sentencing in Three Nineteenth-Century Cities: Social History of Punishment in New York, Boston, and Philadelphia, 1830–1880 (New York: Garland, 1988), 73Google Scholar.

10. Monkkonen, Eric, Murder in New York City (Berkeley and Los Angeles: University of California Press, 2001), 169Google Scholar.

11. On Manhattan's newspaper industry, see Burrows, Edwin G. and Wallace, Mike, Gotham: a History of New York City to 1898 (New York: Oxford University Press, 2000): 674–90Google Scholar.

12. New York Times, November 25, 1872; New York Times, July 8, 1873. Calls for greater certainty in prosecution gained momentum in New York City and hardened into demands for increased severity by the late nineteenth century, as the city's intake of immigrants from non-Anglo-Celtic backgrounds mushroomed. See Ramsey, Carolyn B., “The Discretionary Power of ‘Public’ Prosecutors in Historical Perspective,” American Criminal Law Review 39 (2002): 1313–94Google Scholar.

13. The New York State Prison Association filed this complaint at the 1867 Constitutional Convention (Albany Evening Journal, August 28, 1867, 2). The rate of pardoning for all offenses appears to have fluctuated between 22 and 36 percent in the late 1860s and 1870s, making the predictability of clemency uncertain. These data were not published until 1886 and appeared in “Comparative Statement, showing the number of applications for Executive clemency; also the number of orders granted in each year, from 1865 to December 31, 1885, inclusive, and the percentage to Applications and Convictions,” in State of New York, Public Papers of Governor David. B. Hill (Albany: Weed Parsons, 1886): 288. These rates are difficult to ascertain, as governors typically reported only the number of pardons granted.

14. Elizabeth Dale provides a review of studies that document jurors' reluctance to convict murderers, evident from the mid-nineteenth century and across the nation. See Dale, “Popular Sovereignty: A Case Study from the Antebellum Era,” University of Florida Legal Studies Research Paper No. 2009–17 (2009): 1–55, 50–51.

15. By 1873 New York was firmly established as the nation's publishing center. Its main daily newspapers, the New York Times, New York Herald, New York Tribune, Sun, and World covered the case in detail, as did the leading papers in the principal cities of the state, particularly the Brooklyn Daily Eagle, Albany Argus, Albany Evening Times, Buffalo Evening Courier and Express. Saratoga Springs, the nation's premier summer resort town by the 1870s, catered to its residents and visitors with three newspapers: the Saratogian, Saratoga Sentinel, and Saratoga Sun. The murder trial was a front-page feature in Frank Leslie's Illustrated Newspaper and Harper's Magazine, and it was discussed in The Nation, Century, and Henry Ward Beecher's The Christian Union. No transcript of the trial was produced.

16. Albany Argus, July 4, 1873, 2.

17. “State Prison Victims. Walworth's Traveling Companions. Gillen, Allen, and a Troop of Burglars Taken to Sing Sing. The Mother True to the Last,” New York Tribune, July 10, 1873, 5.

18. Although the tolerance of vigilantism and honor-based violence has historically been associated with the West and South, historians have recently stressed its presence in the urban North as well. As Jeffrey Adler notes, judges and prosecutors in Illinois, where jurors were judges of law as well as fact, always instructed jurors to overlook self-help defenses, yet jurors “consistently endorsed, and in some cases applauded, the use of aggressive self help to resolve affairs of honor.” “‘It is his first offense, we might as well let him go’: Homicide and Criminal Justice in Chicago, 1875–1920,” Journal of Social History (Fall 2006): 5–24, 11.

19. Ramsey's research on the prosecution of murder in New York County between 1879 and 1893 determined that 42 percent of capitally charged offenders were convicted of manslaughter. Just less than 12 percent of offenders charged with murder in the first degree were convicted on the capital charge. That half were men convicted of murdering wives or female intimate partners suggests that jurors' willingness to punish “unmanly” spousal violence grew over the 1880s (Ramsey, “Discretionary Power,” 1364, 1366–69).

20. Hartog, Man and Wife, 239. Hartog uses the term “the written unwritten law” to refer to penal codes in states that expressly recognized irresistible impulse as a defense to murder for husbands who killed. Several states in the South and Southwest retained these statutes into the 1970s (ibid., 367).

21. For an analysis of sexual jealousy as an element in juror sympathies introduced by the Sickles case, see Keetley, Dawn, “From Anger to Jealousy: Explaining Domestic Homicide in Antebellum America,” Journal of Social History 42 (2) (2008): 269–97CrossRefGoogle Scholar. On the unwritten law, see Ireland, Robert M., “The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States,” Journal of Social History 23 (1) (1989): 27–44CrossRefGoogle Scholar; Ireland, Robert M., “Insanity and the Unwritten Law,” American Journal of Legal History 32 (2) (1988): 157–72CrossRefGoogle Scholar; Hartog, “The Right to Kill,” in Man and Wife, 218–41; Moore, Sean T., “‘Justifiable Provocation’: Violence Against Women In Essex County, New York, 1799–1860,” Journal of Social History 35 (4) (2002): 889–918CrossRefGoogle Scholar; Umphrey, Martha, “The Dialogics of Legal Meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility,” Law and Society Review 32 (2) (1999): 393–423CrossRefGoogle Scholar; Adler, “‘It is his first offence.’”

22. Constable, Marianne, “Chicago Husband-Killing and the New ‘Unwritten Law,’” TriQuarterly 124 (2006): 85–96Google Scholar; Adler, Jeffrey, “‘I loved Joe, but I had to shoot him’: Homicide by Women in Turn-of-the-Century Chicago,” Journal of Criminal Law and Criminology 92 (3/4) (2002): 867–98CrossRefGoogle Scholar; Neal, Bill, Sex, Murder and the Unwritten Law: Gender and Judicial Mayhem, Texas Style (Lubbock: Texas Tech University Press, 2009)Google Scholar; Bakken, Gordon Morris, “The Limits of Patriarchy: Women's Rights and ‘Unwritten Law’ in the West,” The Historian 60 (4) (1998): 703–16CrossRefGoogle Scholar; Phillips, Jim and Gartner, Rosemary, Murdering Holiness: The Trials of Franz Creffield and George Mitchell (Seattle: University of Washington Press, 2003)Google Scholar; Roth, Randolph, American Homicide (Cambridge, Mass.: Harvard University Press, 2009)Google Scholar.

23. Books, Peter and Gewirtz, Paul, eds., Law's Stories: Narrative and Rhetoric in the Law (New Haven, Conn.: Yale University Press, 1996)Google Scholar; Umphrey, “The Dialogics of Legal Meaning.” On preemptive violence, see Adler, ‘“It is his first offence,’” 12.

24. For an analysis of multiple and conflicting masculine codes in capital trials, see also Strange, Carolyn, “Masculinities and Intimate Femicide and the Death Penalty in Australia, 1890–1920,” British Journal of Criminology 43 (2) (2003): 310–39CrossRefGoogle Scholar. On the proliferation of masculine codes in the nineteenth century, see Carnes, Mark C. and Griffen, Clyde, eds., Meanings for Manhood: Constructions of Masculinity in Victorian America (Chicago: Chicago University Press, 1990), 6–7Google Scholar.

25. Brown, Richard Maxwell, Strains of Violence: Historical Studies of American Violence and Vigilantism (New York: Oxford University Press, 1975)Google Scholar; Brown, Richard Maxwell, No Duty to Retreat (New York: Oxford University Press, 1991)Google Scholar.

26. Kernan, Thomas J., “The Jurisprudence of Lawlessness,” The Green Bag 18 (11) (1906): 589Google Scholar. Almost every source cited above quotes this study yet they leave out Kernan's other “principles”: “respectable citizens” may kill men suspected of killing a chaste woman; women seduced “or any near relative” may kill her seducer, even in the back; women or their husbands may kill any man who traducers her virtuous character; duelists may kill opponents; men may kill opponents in fair fights; and anyone may kill a cattle rustler.

27. Story, Joseph, Commentaries on the Constitution of the United States, with a Preliminary Review of the Constitutional History of the Colonies and States before the Adoption of the Constitution, vol. 2, 4th ed. (Boston: Little, Brown and Company, 1873)Google Scholar, § 1498, 320.

28. Umphrey, “Dialogics of Legal Meaning,” 394–95.

29. Sarat, Austin and Hussain, Nasser, “On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life,” Stanford Law Review 56 (5) (2004): 1307–344Google Scholar, 1314, n30.

30. Cover's, Robert classic essay, “Violence and the Word,” Yale Law Journal 95 (7) (1986): 1601–29CrossRefGoogle Scholar, for example, takes no account of executive justice and makes no mention of mercy, clemency, pardoning, or exculpation. For exceptions to this trend in sociolegal scholarship, see Sarat, Austin, Mercy on Trial: What It Means to Stop an Execution (Princeton, N.J.: Princeton University Press, 2005)CrossRefGoogle Scholar and Strange, Carolyn, ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press, 1996)Google Scholar.

31. Miller, Vivien M. L., Crime, Sexual Violence, and Clemency: Florida's Pardon Board and Penal System in the Progressive Era (Gainesville: University Press Florida, 2000), 6Google Scholar. The classic study in this field remains Davis, Natalie Zemon, Fiction in the Archives: Pardon Tales and their Tellers in Sixteeenth-Century France (Stanford, Calif.: Stanford University Press, 1987)Google Scholar.

32. David Garland presents a concept of “culture” not as a separate domain but as an integral element of social relations, rendering it amenable to analysis and not merely description; see Garland, , “Concepts of Culture in the Sociology of Punishment,” Theoretical Criminology 10 (4) (2006): 419–47CrossRefGoogle Scholar.

33. Dale, Elizabeth, “AHR Forum: Getting Away with Murder?” American Historical Review 111 (1) (2006): 95–103, 103CrossRefGoogle Scholar; Dale, Elizabeth, The Rule of Justice: The People of Chicago Versus Zephyr Davis (Columbus: Ohio State University Press, 2001): 107–9Google Scholar; Waldrep, Christopher, “Law and Society: Structuring Legal Revolutions, 1870–1920,” Journal of the Gilded Age and Progressive Era, 5 4(2006): 309–23CrossRefGoogle Scholar; Hamm, Richard, Murder, Honor, and Love: Four Virginia Homicides from Reconstruction to the Great Depression (Charlottesville: University Press of Virginia, 2003): 100–101Google Scholar. Hamm argues that the notion of a southern “code of honor” intensified with the romanticisation of “the Old South” in the post–Civil War era, and that it found distinct expression in the North through popular support for the unwritten law.

34. Here I apply the Bakhtinian insight Umphrey develops in her analysis of the Thaw trial.

35. On the naturalization of male power and the historiographical inattention to masculinity, particularly in legal history, Judith Allen argues: “In relations of dominance and subordination, as the truism goes, the dominant group remains unmarked, transparent, unscrutinized” (Allen, Judith, “Men Interminably in Crisis?: Historians on Masculinity, Sexual Boundaries, and Manhood,” Radical History Review 82 (2002): 191–207, 192CrossRefGoogle Scholar).

36. The concept of masculine hierarchies derives from the work of Connell, Robert, Masculinities (Berkeley and Los Angeles: University of California Press, 1985)Google Scholar. For its development in U.S. historiography, see Ditz, Toby L., “The New Men's History and the Peculiar Absence of Gendered Power: Some Remedies from Early American Gender History,” Gender and History 16 (1) (2004): 1–35CrossRefGoogle Scholar. For historical studies that apply these concepts see Bederman, Gail, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1880–1917 (Chicago: University of Chicago Press, 1995)CrossRefGoogle Scholar and Kann, Mark E., A Republic of Men: the American Founders: Gendered Language, and Patriarchal Politics (New York: New York University Press, 1998)Google Scholar.

37. Horowitz, Morton J., The Transformation of American Law, 1870–1960 (New York: Oxford, 1993), 10Google Scholar. Feldman, Steven N. makes similar observations in American Legal Thought, from Modernism to Postmodernism: An Intellectual Voyage (New York: Oxford University Press, 2000)Google Scholar. For a critique of modern law as modernist delusion, see Fitzpatrick, Peter, The Mythology of Modern Law (New York: Routledge, 1992)CrossRefGoogle Scholar. Goldberg, David Theo critiques Fitzpatrick's pessimism in his, “The Prison-House of Modern Law,” Law and Society Review 29 (3) (1995): 541–51CrossRefGoogle Scholar.

38. Although the case was reported as People v. Walworth (1873) 4 NY Cr.R. 360, and despite its appearance in various editions of the New York Code of Criminal Procedure (in relation to the definition of second-degree versus first-degree murder) it was rarely cited in subsequent judgments and appeared in a handful of commentaries and treatises in passing. See, for example, Meagher, John F. W., “Crime and Insanity: The Legal as Opposed to the Medical View, and the Most Commonly Asserted Pleas,” Journal of the American Institute of Criminal Law and Criminology 14 (1) (1923): 46–61CrossRefGoogle Scholar.

39. New York County, Court of General Sessions, “People v. Frank H. Walworth,” Coroner's Inquest, June 6, 1873, Municipal Archives of New York, MDA 1020.

40. Times, June 5, 1873.

41. Given the intensity of sectarian rivalry in the period, surprisingly little was made of the fact that some members of the Walworth family were Catholic, including Frank's grandmother and uncle, Clarence, who had converted to Catholicism. The chancellor was a lifelong Presbyterian. One newspaper that claimed anti-Catholicism as the reason for Frank's conviction was the New York Freeman and Catholic Register, edited by James McMaster, an associate of Clarence Walworth's and himself a convert who made a business of claiming anti-Catholic conspiracies.

42. Monkkonen, Murder in New York, 99.

43. Anon. The Walworth Parricide! A Full Account of the Astounding Murder of Mansfield T. Walworth, by his son, Frank H. Walworth, with the Trial and Conviction of the Parricide, and his Sentence for Life to the State Penitentiary at Sing Sing. (New York: T. O'Kane, 1873), 21. Since many phrases in this text appear verbatim in the New York Herald, one of the papers that covered the case in greatest detail, this pamphlet was likely written by a Herald reporter. In the trial and in every contemporary report the term “parricide,” rather than patricide, was used to describe this form of murder and the perpetrator.

44. The historiography of the relation between these movements and nineteenth-century domestic life is vast. See, in particular, Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar; Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge, Mass.: Harvard University Press, 2000)Google Scholar; Hartog, Man and Wife; and Norma Basch, Framing American Divorce.

45. Herald, June 4, 1873, 3.

46. Sun, June 25, 1873, 1; Chicago Tribune, quoted in New York Tribune, June 6, 1873, 1; Sun, July 3, 1873, 1.

47. Juries seemed more prepared to exonerate stepsons who intervened to protect their mothers from the violence of stepfathers (Roth, American Homicide, 266–68). The biological link between father and son made a great difference in the Walworth trial, where the defense's theory that Frank had inherited a form of insanity from Mansfield clashed with the prosecution's biblical admonitions.

48. One anonymous writer to the Tribune, calling him- or herself “Justitia,” contrasted Walworth's conviction to the acquittals of Daniel Sickles (found not guilty by reason of temporary insanity for killing his wife's lover in 1859), General Cole, acquitted for the murder of his former wife's lover, as well as McFarland. It also mentioned the case of Albert Smith, an Indiana man hanged in June 1873 for killing a woman he desired, along with her lover (“Insane Criminals,” Tribune, July 4, 1873, 4).

49. Bigelow, John, “Some Recollections of Charles O'Conor,” Century Illustrated Magazine 29 (5) (1885): 725–36Google Scholar.

50. Six months prior to the Walworth trial, Beach had defended Edward Stokes. After his client was convicted, Beach drew up a successful motion to set aside the verdict. In March 1873 he achieved a clearer victory by setting up an emotional insanity defense that resulted in a hung jury in the trial of John Scannell for the murder of the man who had killed Scannell's brother.

51. This was the headline in the Christian Union and a phrase mentioned in numerous other papers in relation to the alleged widely practiced custom of concealing handguns (June 11, 1873, 7, 24).

52. “The Walworth Parricide,” Herald, June 7, 1873, 5.

53. Hartford Post, quoted in the Tribune, June 6, 1873, 1.

54. Sun, July 3, 1873, 1.

55. Ramsey, Carolyn B., “Intimate Homicide: Gender and Crime Control, 1880–1920,” University of Colorado Law School Legal Studies Research Paper Series, Working Paper No. 06-11 (2007): 129–30Google Scholar. The conduct of Walworth's trial qualifies Ramsey's claim that trials of male murderers did not include such extended time frames.

56. The National Union Catalogue lists eight novels: Beverly, or, the White Mask; Delaplaine, or, the Sacrifice of Irene; Hotspur: A Tale of the Old Dutch Manor; Lulu: A Tale of the National Hotel Poisoning; Married in Mask: A Novel; Stormcliff: A Tale of the Highlands; Warwick, or, the Lost Nationalities of America; Zahara, or, A Leap for Empire: A Novel.

57. Herald, June 28, 1873, 4.

58. Most psychiatrists and neurologists of the period believed that epilepsy incapacitated judgment and rendered sufferers unable to resist violent impulses. See Dwyer, Elaine, “Stories of Epilepsy, 1880–1930,” in Framing Disease: Studies in Cultural History, ed. Rosenberg, Charles E. and Golden, Janet (New Brunswick, N.J.: Rutgers University Press, 1992): 248–72Google Scholar; Friedlander, Walter J., The History of Modern Epilepsy: The Beginning, 1864–1914 (Westport, Conn.: Greenwood, 2001)Google Scholar. Both works approach the disease as a sociocultural construct. For a study that examines its racicalized meanings, see Boster, Dea H., “An ‘Epeleptick’ Bondswoman: Fits, Slavery, and Power in the Antebellum South,” Bulletin of the History of Medicine 83 (2) (2009): 271–301CrossRefGoogle ScholarPubMed.

59. Belkin, Gary S., “Moral Insanity, Science and Religion in Nineteenth-Century America: The Gray-Ray Debate,” History of Psychiatry 7 (1996): 591–613CrossRefGoogle ScholarPubMed; Waldinger, Robert J., “Sleep of Reason: John Gray and the Challenge of Moral Insanity,” Journal of the History of Medicine and Allied Sciences 34 (2) (1979): 163–79CrossRefGoogle Scholar.

60. William A. Hammond visited Walworth in prison prior to the trial but did not testify. Manuel Gonzalez Echeverria, the country's leading expert on epilepsy, did the same, and he later provided an affidavit that was sent with a package of documents to Governor Tilden in support of a pardon petition.

61. Rosenberg provides a detailed review of debates over the meanings and credibility of these diagnoses, which raged between medical experts and between doctors and lawyers in the 1870s and 1880s; see Rosenberg, Charles E., The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago: Midway, 1989 [1968])Google Scholar.

62. John Gaffney was executed in Buffalo on February 14, 1873, and the sheriff who presided was Grover Cleveland, future governor of New York and U.S. president. Gray would also be instrumental to the conviction and execution of Charles Guiteau for the assassination of President Garfield in 1881, in a trial, unlike Walworth's, where the outcome was all but certain.

63. The prosecution's medical witnesses were Dr. Ralph L. Parson, Dr. Otis Kellogg, and Dr. Meredith Clymer. The quoted statement is Kellogg's, Herald, July 2, 1873. Parsons headed the New York City Lunatic Asylum, Kellogg was superintendent at the Poughkeepsie Asylum, and Clymer was late professor of the Institute and Practice of Medicine, University of New York (New York University) and author of The Nervous System: Its Disorders and their Treatment (New York: William Wood and Co. 1873).

64. Herald, July 2, 1873.

65. Frank remembered firing only three shots, but the autopsy found four bullets. The defense tried to amplify this error in Frank's recollection, but the prosecution effectively dismissed it.

66. Angus McLaren employs this concept, drawn from critical masculinities studies, in his The Trials of Masculinity: Policing Sexual Boundaries, 1870–1930 (Chicago: University of Chicago Press, 1997).

67. Times, July 2, 1873, 2.

68. Albany Argus, July 4, 1873, 2; New York Herald, July 6, 1873, 3.

69. Times, July 3, 1873, 4.

70. Times, July 30, 1873, 4.

71. Walworth Parricide, 72.

72. Tribune, July 3, 1873, 6.

73. Clinton, “The New Murder Law,” Times, July 8, 1873 (emphasis in original).

74. Herald, July, 3, 1873, 5.

75. According to the 1886 report, “Comparative Statement, showing the number of applications for Executive clemency,” Governor Hoffman granted 157 pardons in 1872, the last year of his term, and Dix pardoned only fifty-five prisoners in 1873. However, this report also states that Hoffman considered only 600 applications, even though Hoffman's published papers state that he considered over 1,000 requests in that year. This suggests that the 1886 report was based only on written applications, excluding verbal requests the governor may have considered on prison visits.

76. Charles O'Conor to Governor Dix, July 3, 1873, Executive Clemency Pardon Case Files, folder 35. O'Conor mentioned that appealing to the executive had been the only means to remedy errors at trial in New York prior to 1830.

77. Miller, Crime, Sexual Violence and Clemency, 9.

78. A committee recommendation that a five-member board, including two judges of courts of record, replace the practice of executive review was defeated; see “Report of the Committee on the Pardoning Power,” Documents of the Convention of the State of New York, 1867–1868, Vol. III (Albany: Weed Parsons, 1868): 1–5, 3.

79. Kennedy, Rosanne, “The Media and the Death Penalty: The Limits of Sentimentality, the Power of Abjection,” Humanities Research, 14 (2) (2007): 29–48Google Scholar.

80. Ellen Walworth to Governor Tilden, July 23, 1875; Ellen Walworth to “Mr. Hewitt” (Governor Tilden's secretary), November 16, 1876; Ellen Walworth to Governor Robinson, April 13, 1877 (Executive Clemency Pardon Case Files, folder 36). The word “justice” is stroked out in the original letter.

81. Auburn Daily Bulletin, August 2, 1877, 1. Robinson's pardon rate in his first year, 29 percent, dipped from Tilden's 36 percent, according to the 1886 “Comparative Statement, showing the number of applications for Executive clemency.”

82. Ramsey, “Intimate Homicide.”

83. These figures are based on a preliminary database of clemency files, kept by the governor's office, from 1860 to 1908. The collection contains files on 2,883 individuals, 270 of whom had been convicted of murder, only fourteen of whom were women. I am deeply grateful to Monica Gray, archivist at the New York State Archives, who permitted me to review this database in October 2009.

84. Peter Karsten examines how nineteenth-century jurists struggled to make “heart-based judgments” to protect the interests of those disadvantaged by law's rules. See Karsten, , Heart Versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: North Carolina University Press, 1997)Google Scholar.

85. Article 18 of the Constitution of 1777 authorized the governor to grant pardons and reprieves at his discretion. The Constitution of 1821 extended that power to cases of murder though continued to restrict it in cases of treason.

86. In 1918, article 4, section 4 of the Constitution was amended to assign the Board of Parole authority to advise the governor on clemency; see Rothman, Meah Dell, “The Pardoning Power: Historical Perspective and Case Study of New York and Connecticut,” Columbia Journal of Law and Social Problems 12 (1975–1976): 149–220, 162Google Scholar.

87. Story, Joseph, Commentaries on the Constitution of the United States, 4th ed. (Boston: Little Brown, 1873)Google Scholar, § 1497, 320. This faith also defeated the recommendation of the Committee on the Pardoning Power to establish a pardon board in 1867.

88. Juvenile justice was another area. Quaker philanthropists established the New York House of Refuge in 1816 and a decade later a statute (Chap. 24, Laws of 1826) authorized courts to commit juveniles convicted of crimes or adjudicated as vagrants to detention in the Refuge. For an analysis of the juvenile justice movement's subsequent development, see Tanenhaus, David, Juvenile Justice in the Making (New York: Oxford University Press, 2004)Google Scholar.

89. Criticizing the acquittal of General Cole, a law editor commented: “It may be questioned whether the doctrine of a reasonable doubt has ever been carried so far, and it is to be hoped for the credit of the bench and the safety of society that it never will be again” (Hill, Edward B., “The Punishment of Attempts and the Defense of Insanity in Capital Cases,” in Grinnell, Charles E., ed., American Law Review, vol. 15 [Little, Brown and Co., 1881]: 601Google Scholar).

90. Stuart Banner links distinctions between degrees of murder to mounting doubts about the place of the death penalty in “modern civilization.” However, he contends that none of the statutes “listed any criteria jurors might use to divide murderers into two classes,” and that “judges did not instruct juries as to how they should carry out this new responsibility” (The Death Penalty: An American History (Cambridge, Mass.: Harvard University Press, 2002), 215). The 1873 statute under which Walworth was convicted, and Davis's reported charge, suggests that this was not the case in New York.

91. New York's Constitution of 1846 (approved by the electorate in November 1846) limited the scope of executive authority to criminal offences other than cases of treason and impeachment.

92. Third Constitution of the State of New York, art. 4, sec. 1, para. 5.

93. This remains the case (Rothman, “Pardoning Power,” 161–63). As New York State's online parole handbook states: “Only the Governor may grant clemency, and it is only granted under the most compelling circumstances” (New York State Parole Handbook: Questions and Answers concerning Parole, Release, and Supervision (Albany: 2007), 44).

94. Monkkonen calculated the rate, from 1797 to 1875, at 30 percent (“Homicide,” 89).

95. Edward Miggael was a military messenger during the Civil War, whom Gov. John J. Hoffman appointed as pardon clerk in 1869. Gov. Grover Cleveland dismissed him in 1883, allegedly because he thought the position required a legal man, who could “make abstracts of the history of cases and records of application,” rather than present opinions (“The Pardon Clerkship,” New York Times, January 3, 1883). I am grateful to Andrew Arpey for bringing this account to my attention.

96. This custom continued throughout the twentieth century. Most governors continue to provide detailed accounts of cases they consider worthy of consideration, commenting on the character of the accused and their deservedness for mercy. For a recent example, see http://www.ny.gov/governor/press/press_0914093.html (accessed March 3, 2010).

97. These observations are drawn from my review of the Journals of Governor's Actions—Decisions, New York State Archives, RG A0607-78, 1870–1880. A full listing of the State Archives' records relating to clemency is available at http://www.archives.nysed.gov/a/research/res_topics_legal_trials_clemency.shtml (accessed March 3, 2010).

98. The Albany Law Journal drew a crude comparison between Walworth's case and those in which “a nigger or a low-down white man kills another,” where defendants were always assumed to have their senses, making it easier to hang them (Albany Law Journal, 23 (1881): 502).

99. “Report of the Committee on the Pardon Power, Report 78,” Documents of the Convention of the State of New York Vol. III, 1867–1868 (Albany: Weed Pardons, 1868): 1–5, 4.

100. This form letter was reproduced in newspapers and does not appear in the clemency file. (“Frank H. Walworth. Governor Dix Petitioned to Grant him a Pardon,” Daily Graphic, July 28, 1873, 186).

101. Story, Commentaries, 320.

102. These phrases are extracted from governors' papers over the 1870s. Although these constructions and similar ones appear frequently, the quotes have been selected from statements referring to prisoners who had been convicted of forgery, larceny, attempted burglary in the third degree, and mayhem. Pardoning also operated as an extrajudicial form of appeal for poor prisoners. Comments such as “the evidence against these defendants was barely sufficient to be legal,” and “the pardon was granted on account of grave doubts concerning the prisoner's guilt” are not infrequent in the published papers of Governors Hoffman, Dix, Tilden, and Robinson.

103. James C. Mohr, Doctors and the Law, 174–75.

104. “Certificate of Insanity,” July 28, 1874, Executive Clemency Files, folder 36. Walworth had already been transferred to Auburn State Penitentiary on 5 December 1873 in a routine transfer of prisoners from Sing Sing to relieve overcrowding.

105. “Frank Walworth pardoned. Gov. Robinson States his Reasons for this Exercise of Executive Clemency,” Albany Weekly Times, August 9, 1877, 1.

106. Green, James, Death in the Haymarket: A Story of Chicago, The First Labor Movement and the Bombing That Divided Gilded Age America (New York: Pantheon, 2006)Google Scholar.

107. “Frank Walworth pardoned,” 1.

108. Sarat and Hussain, “On Lawful Lawlessness,” 1321.

109. United States v. Wilson, 32 U.S. 150 (1833). The presidential power to pardon is granted under Article II, Section 2 of the Constitution: “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The “Jurist: Legal News and Education” web site, directed by Bernard Hibberts, provides excellent documentation and commentary on the presidential pardon. See http://jurist.law.pitt.edu/pardons.htm (accessed December 1, 2009).

110. The appointees presented their report to Governor Tilden on August 8, 1876, without making a recommendation. They did, however, confirm that Walworth was a “confirmed epileptic with mental enfeeblement” (Executive Clemency Files, folder 34). Tilden was in the midst of his presidential campaign at the time.

111. Albany Argus, August 2, 1877, 2. The Argus was one of several papers that published the pardon verbatim in addition to the petition written by Justice Augustus Bockes. Most Manhattan dailies and the state's papers in major towns and cities granted the pardon considerable space.

112. “Lucius Robinson's Death,” New York Times, March 24, 1891, 4.

113. Quoted in “Young Walworth's Pardon,” Albany Argus, August 3, 1877, 2. Earlier the World had applauded the verdict, since it upheld “the public necessity that justice according to the law should be rigidly done whenever a human life has been unlawfully taken” (New York World, July 3, 1873, quoted in the Daily Saratogian, July 4, 1873).

114. Daily Saratogian, June 30, 1873, 1.

115. This was the seventh in Kernan's “Decalogue” of lawless principles (Kernan, “Jurisprudence,” 589).

116. “The Pardoning Power,” Albany Law Journal 7 (1873): 210–12, 211. Reverend Henry Ward Beecher also wrote in favor of a “court of pardons” in an editorial published a month after the Walworth trial (“The Logic of the Law,” The Christian Union, August 13, 1873, 130).

117. Buffalo Daily Express, May 12, 1881, 3. As it transpired Frank Walworth merely dabbled in the law, working in Saratoga Springs and Manhattan for several years. He died in 1886 of “acute papillary bronchitis” at the age of 33.

118. State of New York, Public Papers of Charles E. Hughes Governor of New York, vol. 2 (Albany: J. B. Lyon Co., 1909), 224Google Scholar.

119. Smith, Philip, Punishment and Culture (Chicago: University of Chicago Press 2008), 160.Google Scholar

120. Sarat, Mercy on Trial. Sarat's book was inspired by a dramatic exercise of executive clemency on January11, 2003, when departing Illinois governor George Ryan pardoned four prisoners awaiting execution and granted clemency to the remainder: 167.