Things aren’t looking good for Stokes by the time the prosecution concludes its argument. The fact of the shooting is irrefutable and the death of Fisk undeniable. The spectators, nodding assent at the prosecution’s key points, seem convinced; if the jury is a fair sampling of the same population pool, the gallows must loom large over the prisoner.

Against the unfavorable mood, John McKeon rises to speak for the defense. “Gentlemen of the jury,” he says, “this is one of the most important and impressive duties in which I have ever been engaged.” The life of one man has been cut short; the life of another hangs in the balance. The jury’s duty is to deliver justice to both.

He takes up a document. “Edward S. Stokes is indicted for what?” he says. “He is indicted in the paper which I hold in my hand for having on the 6th of January 1872 inflicted a wound on James Fisk, the younger, from which wound Fisk died.” More specifically, the inflicting is alleged to have been done “with malice aforethought” and with “the premeditated design to effect the death” of Fisk.

McKeon explains that he will refute the charge of premeditation, and he begins by asking the jury to consider the deceased. “Mr. Fisk was no ordinary man. I am not one of those who intend to underrate his abilities. He was a man who made the impress of himself on the age in which he lived. Fisk during his lifetime did things which attracted attention not only on this continent but on the other side of the Atlantic.” McKeon recounts Fisk’s childhood and youth in Vermont, and his migration to Boston for business. “The war raged between the North and the South, and Mr. Fisk, not being governed by any feeling of over-loyalty, went into operations in Confederate cotton and amassed a large sum of money.” He moved to New York and began a series of bold speculations. He conspired in the manipulation of the Erie Railroad and in the Black Friday gold raid. The violence of the gold panic surprised even its instigator. “Fisk became alarmed, and from that time forward always went armed.” His sponsorship of the Ninth Regiment was characteristically self-interested. “He wanted men of the roughs whom he could use. He pursued a system of brigandage, and his brigands were encamped in the very heart of the city.” He threatened those who stood in his way. “Mr. Fisk’s common remark was, ‘If anyone interferes with us, we never will prosecute him,’ and a favorite expression of his was, ‘Our touch is cold and clammy.’ Another favorite expression was, ‘We have graveyards for our friends.’ ”

Such was the man Edward Stokes shot. “We will show you that this gentleman”–Stokes–“who fired this ball at him made himself obnoxious to Mr. Fisk at a certain time; that he found himself followed from time to time.” McKeon describes Fisk’s treatment of Dorman Eaton, a civic reformer who challenged favors Fisk had received from Tammany Hall. One night Eaton was returning home after work. “He heard a whistle and saw a man on one side of the street watching him, and another man just near his house; he heard a low whistle, and a moment afterward he was struck down within a hundred feet of Fifth Avenue, and was left there without any sign of life.”

The spectators whisper and shift in their seats. Most have heard allegations that Fisk’s men sometimes played hard, but New York is a hard town. Yet the brutal assault on Eaton, who barely survived the attack, pushes the boundary even for Fisk and New York. Some in the audience register concern; others seem pleased at the thought of a newly shocking twist in the already sordid tale.

“We will show you that Mr. Fisk organized that,” McKeon continues, of the assault. “And we will show you that this man Stokes was told that he would be treated in the same way.”

McKeon injects a personal note into his description of Fisk’s malignance. “I have lived through the offices of district attorney, for both the state and the United States, for nearly four years. My business as such required me to prosecute perjurers, murderers, slave traders and all of that character. And there never lived a man of whom I was afraid, nor ever met a man who I thought would do me a wrong, until James Fisk, Jr., and I faced each other.”

McKeon has a reputation in New York for dauntlessness; this grim assertion provokes chin stroking and head wagging around the courtroom. He extends the moment for maximum effect, discreetly glancing at the audience every few seconds to assess the damage he has done to the prosecution.

He moves on. He recites some of Stokes’s history with Fisk. Stokes was managing the family oil refinery when he received a message that Fisk wanted to meet with him. “He was brought over and introduced to him at the Opera House. Fisk said he wanted to get hold of this oil refinery, and if Stokes would manage to keep the rent down he thought he could make a good thing out of it, and he then entered into a plan that every barrel of oil that passed over the road should be charged to every other man engaged in the business, and at the end of the month a drawback train would lay up at the rate of sixty-five cents a barrel. The consequence was there was an immense profit made that yielded something over one hundred thousand dollars a year. This was all taken out of the Erie Railroad Company.”

A few in the audience know that these secret kickbacks occur with some regularity at the intersection of the oil and railroad businesses. But to hear that Fisk was so egregiously robbing his own company nonetheless causes a rustling in the courtroom.

McKeon again pauses for effect. He shuffles his papers and stares at the ceiling. Then he plunges into the part of the story everyone in the room has been waiting for. “I introduce to you the name of a person of whom you have heard a great deal. Stokes was introduced to Miss Mansfield in November 1869, at the Continental Hotel in Philadelphia.” The person arranging the introduction was an agent of Fisk’s, McKeon says. “The first time that Stokes ever saw Miss Mansfield at her house, he called upon her on New Year’s Day, and was invited by Fisk to dine with him there. He did dine with him.” Jay Gould was also present, as were several officials of New York City and State.

It was shortly after this that Miss Mansfield grew disenchanted with Fisk. “She turned him away, would have nothing to do with him. For what? It is enough to know that Mr. Fisk had a wife living in Boston, where she remained while he lived here with Miss Mansfield. Now, I want you to mark the point that she became disgusted with him—disgusted as any woman ought to be, for a number of reasons. But the reason that she left him was that her health required that she should drive him away; that it was necessary that she should have nothing to do with him, and she separated herself from him.” McKeon doesn’t explain the nature of Josie’s health problems, perhaps presuming that delicacy will prevent the prosecution from inquiring. He does say that Fisk refused to let her alone. “Fisk was so infatuated with this woman that he begged her to take him back, and she, having the weakness of a woman, yielded to Fisk’s entreaties.”

During this same period Fisk sought to revise his kickback understanding with Stokes—to Fisk’s benefit, naturally. Stokes resisted, whereupon Fisk threw the full power of the Erie and of his political influence against him. “Stokes’s business was paralyzed.” Facing ruin, Stokes appealed to Fisk for mercy. “Stokes was on his knees to him.” Fisk arranged a late-night meeting at Josie Mansfield’s house. “This woman possesses an abundance of intelligence,” McKeon says, in a meaningful aside, “for which, notwithstanding her surrounding circumstances, she ought to be credited. A woman of twenty-four years of age—in all my conversations with her I have never seen her superior.” Fisk tried to intimidate Stokes. “He said his powers were so great there was no resisting him; that through his political associates in this city and through the political ring”—the Tweed ring—“his power was such over judges and all public officers that they were completely under his control, and that they were ruling this city with a rod of iron; and that the Protestants never ruled France more severely than they were ruling New York at that time.”

But Fisk had an additional demand, one more personal. It involved Josie Mansfield, McKeon says. He quotes Fisk: “I want you to get back her affection for me.” Stokes responded, “I have no control of that. I will have nothing to do with it.”

Fisk was outraged. “He vowed vengeance against Stokes,” McKeon says. “It was a feeling of jealousy, a feeling of revenge which prompted him from time to time to endeavor to gain control of Stokes for the purpose of getting Miss Mansfield back again into his affections.”

Fisk made Stokes’s life a living hell, McKeon says. “Stokes was told that he had better arm and protect himself—that Fisk would take his life.” Stokes grew terrified. “We will show that men were following him night and day—that he could not go out even in a public place like Broadway that he would not be followed from place to place and the attention of persons called to that fact. The poor fellow was so anxious for this settlement that his mind became disturbed.”

Yet Fisk only intensified the pressure on Stokes, McKeon says. Fisk sent a gang of toughs to seize the refinery by force. He orchestrated an indictment of Stokes on an embezzlement charge and had him locked up in the Mulberry Street jail. He rigged the arbitration of the oil dispute so that Stokes received a mere pittance. He bribed the houseboy of Miss Mansfield to swear that she and Stokes were plotting to blackmail Fisk. “He was a willing tool,” McKeon says of the boy. “As soon as the boy had made these statements, he disappeared from the state of New York; if he had not, he would have been arrested for perjury. After the Yorkville court saw through Fisk’s machinations and neutralized them, he engineered another indictment in another court, which indictment was handed down on January 6.”

This pushed Stokes to the edge of insanity. Yet far from seeking Fisk out, he tried to avoid him. The merest chance took him to the Grand Central Hotel that afternoon. “At four o’clock he crossed over the street on the corner of Broadway and Great Jones,” McKeon says. “Just then he was met by a gentleman of respectability and standing, who left a stage and said, ‘Ned, what are you about? Come along with me; I am going to Niblo’s to get tickets for The Black Crook.’ They walked down together, and as they passed the Grand Central he thought he saw a lady in the hotel bowing to him, and he said to this gentleman, ‘I think there is a lady I met in Saratoga; come along over with me.’ The gentleman excused himself, and Stokes left him and went across to the ladies’ entrance. Then he saw that he did not know her, and walked through the main hall toward the stairs. The lady passed him here and went upstairs. He had his pistol in his pocket, being in fear for his life, as I have said. As he came to the turn, and got to the head of the stairs, he looked down and saw Fisk coming in at the bottom of the stairs. His first feeling was to go down, and as he did so he saw Fisk draw his pistol, and then he pulled his pistol and fired twice.”

The audience members gasp and stare at one another in surprise. This is the first time anyone at the trial has suggested that Fisk had a pistol. They shift forward in their seats to hear McKeon’s corollary to this amazing assertion.

“When Stokes fired he was in imminent danger of his life,” the defense attorney declares. “If he hadn’t drawn, this man would have shot him dead.”

The audience is mesmerized; some members seem pleased. Until McKeon got up to speak, Stokes’s conviction appeared certain, but now the outcome is again in doubt. The trial has grown more fascinating than ever.

McKeon promises to prove that Fisk was armed, and he ascribes the silence of the defense till now on this point to reasonable prudence. “We were afraid to develop our case because we knew that perjury could be easily procured. It was for the purpose of preventing anyone from manufacturing testimony on the subject that we kept our own counsel.”

McKeon artfully allows the jury a fallback position in case it doesn’t accept the argument of Fisk’s pistol packing. “Stokes might have been wrong, but he believed that his life was in danger. He had the hallucination that Fisk was about to jump upon him suddenly. He slept with his pistol under his pillow. Whether his belief was well founded or not makes no difference. I am sure he believed it, and if you are satisfied that he so believed, you are bound to acquit him. If you have reason to apprehend, from the desperate character of the man opposed to him, that he actually saw, or believed he saw, that man draw upon him, you will find him guiltless.”

McKeon appeals to the jurors’ humanity and to the spirit of the law. “Bear with us while we unfold this story to you. We ask you to believe us, and hear us in that spirit of mercy which the common law nobly, eloquently says would rather err on the side of mercy than on the side of justice.”

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