Josephine McCarty: Mother, Lobbyist, Spy & Abortionist

Kelly  0:00  
This is Unsung History, the podcast where we discuss people and events in American history that haven't always received a lot of attention. I'm your host, Kelly Therese Pollock. I'll start each episode with a brief introduction to the topic, and then talk to someone who knows a lot more than I do. Be sure to subscribe to Unsung History on your favorite podcasting app, so you never miss an episode. And please, tell your friends, family, neighbors, colleagues, maybe even strangers, to listen too. Josephine Augusta Fagan was born in 1826, in Richmond, Virginia, to Terrence and Phebe Fagan. By 1833, they had moved 500 miles north to a farm in Augusta, New York, near Utica. At age seven, Josephine's middle name was changed by Phebe to Virginia, as a reminder of her birthplace. By 1841, both Josephine's father and her stepfather had died, and Phebe was a single mother, with Josephine her only child, a somewhat unusual family arrangement for the day. The following year, when Josephine was 16, she joined the very small percentage of women pursuing secondary education, enrolling in the co-educational Oneida Conference Seminary in Cazenovia, New York. There, Josephine would have taken courses in subjects like reading, geography, history, chemistry, and logic. During her school years, Josephine befriended a clerk at a local general store, a young man named Milton Thomson, who went by Tom. In 1844, when Josephine headed to the Hudson Valley to begin work as a teacher, Tom sent her a letter asking her to marry him. Josephine declined the offer, and soon moved south. After trying unsuccessfully to open a girls' school in Washington, DC, she worked as a governess in Port Tobacco, Maryland, and then received another offer of marriage, this time from a 40 something year old inventor named Robert McCarty. In July, 1845, Josephine and Robert married in Georgetown, and then moved to New York City. Four years later, Robert left Josephine and their three young children, and sailed off to England. Josephine struggled to work and raise the kids, splitting time between New York City and her mother's farm in Augusta, for the next six years. In 1851, Robert wrote, asking her to bring the kids to England, where he had been selected as a judge at the Great Exhibition of the Works of Industry of All Nations in the World's Fair. For most of the children's lives, Josephine had raised them essentially as a single mother. But six months after she brought the children to England at Robert's request, he abducted them, and Josephine, despite many attempts, never saw them again. By the summer of 1854, Josephine was back at her mother's farm in Augusta, when she ran into Tom, who by this point, had married and was running an insurance agency with his brothers. In 1855, Josephine began a sales job for a small publishing business run by Adolphus Ranney. Josephine was talented enough at sales, that Ranney then paid her to work as a political lobbyist in Albany, trying to persuade state legislators to add Ranney's scientific charts to the New York state curriculum, in what would have been a very lucrative contract. While selling medical books, Josephine had decided that she wanted to attend medical school, an opportunity then newly available to women. Tom disapproved, but Josephine persisted, attending first the Female Medical College of Pennsylvania, and then the Penn Medical University. She didn't actually graduate from either school, but that didn't stop her from giving public lectures to women on physiology, and then training at Blockley Hospital in Philadelphia. In 1859, Josephine's son, Louis Napoleon, was born. She later claimed that she had adopted Louis, but the evidence suggest he may have actually been the biological child of Josephine, fathered by Dr. Smith, chief resident physician at Blockley, with whom Josephine was rumored to have an affair. Shortly before Louis was born, Josephine was fired and accused of stealing from Blockley as she left. With the outbreak of the Civil War, Josephine headed to Washington, DC, possibly to join the war nurses. In DC, she was arrested for espionage, accused of visiting secessionist families in her old stomping grounds in Port Tobacco, Maryland. Upon her arrest in 1862, she was imprisoned at the Old Capitol Prison, alongside the more famous spy, Rose O'Neal Greenhow. While imprisoned, Josephine realized she was pregnant again, this time with Tom's son. After Ernest's birth in 1862, Josephine returned to DC, traveling repeatedly back and forth to Port Tobacco, before once again heading to New York, and working as a traveling sales agent. In 1864, Josephine, heavily pregnant with her sixth child, a daughter, she claimed was Tom's, moved to East Albany, where she presented herself as a widow named Virginia Seymour, while publicizing her services as a women's doctor, under the name Mrs. Emma Burleigh MD. As I'll discuss with this week's guest, laws around abortion were becoming more strict at this time. But that didn't stop Josephine, aka Virginia, aka Emma from advertising that she could treat, "all maladies of the uterus," and that she could remove, "all obstructions to the monthly courses at one interview." In other words, Josephine was explicitly working as an abortionist in a house that Tom had helped her purchase. In 1871, things apparently soured between Josephine and Tom, and he foreclosed on her house, leaving her and the children homeless. On January 17, 1872, Josephine boarded a streetcar in Utica, New York, and after a brief conversation, she shot Tom, injuring him and inadvertently killing the man next to him, Tom's nephew, Henry H. Hall. In May, 1872, a jury of 12 men returned a verdict in the murder case. In their judgment, reached quickly in the jury room, and despite many eyewitnesses to the crime, Josephine was not guilty. The Utica Daily Observer reported, "Thus closes one of the most remarkable criminal trials ever recorded in this country. Its conclusion is a great relief to the accused, the court, and its officers, county officials generally, the able counsel for the people, and the prisoner, the jurors, reporters for the press, and the public generally. Probably none will regret that it is over, except the little news boys"

Kelly  9:54  
Josephine largely disappeared from public view for the next 26 years, and died in December, 1898, in Neptune Township, New Jersey. She is buried in the Mount Prospect Cemetery, under a headstone bearing the name, "Virginia S. Seymour." Joining me in this episode is historian, R. E. Fulton, author of "The Abortionist of Howard Street: Medicine and Crime in 19th Century New York."

Kelly  11:00  
Hi, R. E. Thanks so much for joining me today.

R. E. Fulton  11:02  
Thank you so much for having me. I'm excited to be here.

Kelly  11:05  
Yes. I'm excited to talk about this incredible woman, Josephine McCarty, aka lots of other names. How did you first come to know about her story and think about writing a book about her.

R. E. Fulton  11:21  
So I discovered Josephine while I was working a summer job the summer after I finished grad school. And in grad school, I'd done a little bit of work in a class about the history of abortion, or rather, the class was not about the history of abortion, but I'd done a project focusing on that history in the United States, particularly in the sort of mid 1800s. And I was kind of interested in the topic, but then I finished grad school, I wasn't planning to pursue that any farther. I'm working that summer, at a nursing school, I was like a receptionist. And it was one of those jobs where they had nothing for me to do. Yeah, I was I was there, you know, five hours a day, and they had maybe half an hour of work for me. So I ended up spending a lot of time just trying to figure out how to fill those hours. And one of the ways I did, I still had institutional access to a database of America's historical newspapers. And I would just get on there and put words in and just see what came up. And one day, I, you know, thinking back to this abortion project I'd done in grad school, and I thought, you know, "Okay, I'm kind of interested," because I read a lot about sort of what people were saying about abortion at the time. But I wanted to know what people said about abortionists, about the people who were actually providing abortions, right? Like, who who were those people? Why did they do it when it was illegal? You know, all of these questions. So I put the word abortionist into this newspaper database. And I started just clicking on what came up. And it was a lot of, you know, little articles about, you know, "Mrs. Pamela Wager has been arrested for, you know, death of her patient." And all of these women seem to be kind of just just women, just ordinary, middle aged women. And then I clicked on one article, and it was not about abortion. It was about a guy who'd gotten shot in a street car. I said, "Wait, wait, wait, wait, wait, what's going on here? How does this connect to abortion?" It was a piece in the New York Herald. And the headline ended with, "The Murderess Said to Be an Abortionist." And that kind of stopped me in my tracks. And I said, "Okay, wait a minute. There's a story here about this woman." I was still just at my desk, you know, doing all of this because this thing for me to do. And I ended up you know, I looked there, I saw, okay, her name Josephine McCarty, I started looking her up on ancestry.com, I started putting together all of these pieces. And there were a surprising number of pieces. Even within just my shift, I started learning so much about her. She was a spy in the Civil War. And she was one of the first women to go to medical school, and there's all of these different intrigues. And I finished my shift, and I went to pick up my wife. And I was telling her about this. And you know, I found out about this crazy story, and I was telling her and she said, "You should write a book." I said, "Wait a minute, I think I will." That's that's how I found her. It was a complete accident. I wasn't planning to write a book. I wasn't looking for a story. I wasn't looking for anything except for a way to kill time. But I found something pretty, pretty amazing. 

Kelly  14:42  
Yeah. So at the heart of this story is Josephine McCarty in really her own words, and she is not a reliable narrator, as you talk about upfront in your book. How do you take her story about herself and use that but also other sources you can find and put together some version of what we think happened?

R. E. Fulton  15:08  
So this is really like this is such a challenge with her story because right, as you say, you know, the primary source I have on her is in her own words, but it's also filtered through somebody else. So my primary source, really the guiding light for me throughout this is the transcript of her trial, following the death of Henry Hall, as it was published in the Utica Daily Observer in 1872. So I have some unnamed reporter's account of what she said on trial for her life. And the reason I only have that newspaper account, there was an actual official trial record. But it was being kept in Utica, New York. And one winter, somebody left the window open in the building that it was kept in. So that's been destroyed, it's gone now. So I'm left with just this one central story of her life. But I don't know exactly which parts of it are real. And so a big part of my process was was taking that story, which was sort of the first story I found of her and chasing down every every lead I could everything she said, or someone else said about her, to try to see if I could find some sort of evidence elsewhere that the things she said actually happened. So, you know, she talked about going to a seminary in Cazenovia, New York, not a religious school, but just a coed kind of high school. So I went to their records, and I emailed their archivist and said, "Okay, wait, do you have a record of this woman?" And they did. And so okay, she was there. I went to the National Archives in Washington, DC to see if the records of the Old Capitol Prison had any evidence of her being held there. And the prison records didn't, but they showed me these files that, you know, they were being kept on spies at the time. And wouldn't you know, it, there's a Mrs. McCarty in those files. So a lot of it was sort of tracking down and answering the first question, was she physically where she said she was? And then the next level of question is okay, she was there. But did what she said, happened, actually happen? So, for example, she calls herself in her career as a physician, Dr. Emma Burleigh MD. And I had heard, okay, she went to the Female Medical College of Pennsylvania, first degree granting women's medical college in the country. So I went to their archives, and I said, "Okay, did did she go here?" And yes, she was there. But she never graduated. Right? So she says, she's an MD? No, she's actually not, but she did go there. She did take classes. So it's really all about this sort of like breaking down, in closer and closer look like, "Okay, how much of what she said was true?" And then the next question that I always want to ask is, you know, why would she say, what she said happened, and sometimes there would be a clear reason for her to lie. Right? She's gonna make more money if she says she has a medical degree. And sometimes the story she told just made sense. And I have made a real strong effort whenever I talk about her whenever I write about her, not to take her at her word, but also to sort of give her an honest telling of her story, because there's a lot of things that you just are never going to be able to find in the historical record. It's a struggle. 

Kelly  18:50  
So, a big part of the defense that is put on for her is that she has been misused, abused by the men in her life. And you know, we can talk about Tom in a bit, but her I was gonna say her first husband, her only husband, Robert McCarty, definitely misuses her. So can we talk a little bit about this marriage, and she's only 19, I think when they get married or 19 when she has her first kid. This is a formative event in her life. Can you talk some about that? What what she goes through with this marriage?

R. E. Fulton  19:29  
So she was 18 when she married Robert, and I don't know his exact birth date, but he was he was in his 40s at the time. So there's a big age difference. And the first few years of her marriage, were, you know, all I know about those years is that she was having children. She has her first child, you know, within a year of their marriage, and then it's one year, one year, one year, right. It's this very exhausting cycle of pregnancy, childbirth, infant care, all of that becoming layered on top of each other. And this is an experience that lots of women at the time, were having that, you know, marriage sort of initiated this period where your entire life becomes sort of ruled by those reproductive processes. And so first, you know, I see that that sort of real shift from her life from prior to that she was teaching, she was, you know, trying to start a new school in Washington, DC. Now that's over. But then things got worse, because, you know, within a few years of their marriage, her husband, he's an inventor, he's got this big steam gun invention that he wants everybody to buy. Nobody ever buys it. But he's an entrepreneur, right? He's chasing success. And he ditches her. He leaves her in New York City with three children under five years old, and I think it's $14 that she has. And he leaves her to go to England, because there's a big exhibition that's going to be put on and he's going to be a judge there. But there's this disregard in his actions for her safety, for her health, for supporting her in any way. And, again, pretty typical, a lot of women have that experience. A lot of women have that experience today, right? It is something that you know, you see a lot of relationships. But then, all right, he leaves her to go to England, she takes the kids to her mother's farm, they're separated for a while, but then he says, "Okay, come over to England, bring the kids let's reunite" And when they reunite, this is one of those places where her story involves a lot of things that I can't corroborate. It's possible. But if I had the money to fly to England and dig into some archives, maybe I could, but a lot of it is the kind of thing that just doesn't show up in an archive. Because what she says is that when she got to England, she found him living with another woman. She found out that he was diseased, which that's the word she used. I take it to mean that he had some sort of a sexually transmitted infection. So he's been unfaithful to her. He's now putting her at risk, potentially. And then Josephine's story is that while they were in England, he kidnaps the kids. He takes them away. She's at church, and she comes home and they're gone. And then there's this cycle for a couple of years where, you know, she tries to track him and her children down, and then he takes them away again, and this sort of, sometimes he'll reconcile for a little while when he needs her help. And then it's back again. And within all of this, there's at least one episode where she talks about him knocking her down, sounds like there's some kind of physical violence in their marriage. It's also hard to actually prove, but this is one of those moments where I look at that story. And I say this, this makes sense. This is something I know happens. And in particular, it's something that I know happens in marriages with a big power imbalance, a huge age gap, a marriage that's rushed, or one person is very young. It all fits together and makes emotional sense. And then, you know, the real proof of sort of the wrong that Robert does her is that she does not get her kids in the end. She goes back to the US childless, alone. Her three children, the two oldest I know lived to adulthood. Her third I'm not sure did. But even I as a historian with this sort of bird's eye view, I can't find them. I can't be sure exactly what happened to her children. And I think that that that wrong that Robert did her right, that's really foundational part of her story. As she tells it at trial, but even from an academic perspective, looking at where her life goes after that, it seems to have been a really formative trauma for her.

R. E. Fulton  24:22  
Yeah, as we're talking right now, my kids are in another state visiting family and I know exactly where they are and can pick up the phone and call them at any time and it still feels like a piece of me is somewhere else. I cannot fathom what she went through. So you mentioned that she goes to medical school, doesn't actually graduate with a with an MD, although she claims that she has. Could you talk some about what what the medical field is going through at this time, because it's it's changing a lot? It is not that unusual for someone to be acting as a doctor without actually a medical degree. She probably has more medical training than a lot of people who who are acting as doctors, so what what all is happening in the medical field in these years as she's going through training and then acting as an abortionist?

R. E. Fulton  25:12  
So much is happening. And I think I think honestly, the sort of starting point for me of understanding medicine in the US in the mid 19th century, is is under it is not just one thing, right? Today, we've got a medical establishment, there are steps you go through to become a doctor, to say you are a doctor, to practice as a doctor. That's not the case in the 1800s. Right, we're coming from a period in sort of the late 18th century, where doctors, it was kind of a part time job. You might be mayor most of the time and doctor sometimes, right. It wasn't something that was necessarily a part of many people's ordinary lives, right? You don't call a doctor, when you're sick. You go to your mom, you go to your wife, you go to the women in your family and your community. And they're kind of responsible for a lot of that everyday healing. But then we move into the 1800s. And one of the primary threads that we see is this push by kind of elite doctors, elite medical men, to create a structure to create one thing that is medicine. And these are people who are maybe going to medical schools in Europe, they're people who are trying to get laws passed that say you have to have a certain license in order to practice. I think it's important to remember we looked at that in sort of the 21st century, I look at that, and I say, Well, that's good, you should have a licensing system. But in these early days, it is also essentially a kind of class based gatekeeping system. It's a you know, it's not necessarily a group of people who have the best medical knowledge, it is the group of people who have the most money. But they're not the only people practicing medicine, because you have a lot of different sects that are sort of based in folk medicine. They're based in a commercial medicine, you know. There are manuals that you can buy that claim to have a whole system of medicine that you can just use at home, like mainly enemas and steam baths. So it's not the most fun medicine. But, you know, it's it's really a situation where you have a lot of different groups trying to kind of grasp onto some kind of medical knowledge and say this, this is the way we can care for ourselves and each other. But it's kind of a mess, right? There isn't a single system. And part of what that means is that people who couldn't necessarily get into that elite class couldn't necessarily go to school in France and pass whatever licensing exam exists, they can still be doctors. They can still engage in the profession of medicine in some way, even if they don't have necessarily an MD. And so I really like what you say that, you know, we look at Josephine today and we say, "Oh, she didn't have a medical degree." It's easy to dismiss that as "OK, so she wasn't really trained, she didn't really know what she was doing." The distinction between Josephine McCarty and the other women who attended the same school and graduated is that she didn't pay a $20 graduation fee. And she didn't write like a five page essay on a medical topic. She had the same training, otherwise. She went to the same courses. And these are the same courses that will be required for an elite doctor who's going to pass that licensing exam. Now, in all of these cases, those courses, that training is not up to a 21st century standard. We're still in a very exploratory phase, people are really trying to figure out how to make this work. But it's it's a much more in some ways, democratic system of medicine, where a lot of people have different entry points into that profession. And where in a lot of cases, there's not a ton that they can do if you're really sick. 

Kelly  29:00  
And so at the same time that these changes in the medical profession are happening, not at all coincidentally, changes in how abortion is defined, how abortion is regulated, are also happening. And this is all you know, in the same years that she is starting to act as an abortionist, lots of women in fact in New York State were acting as abortionists. You talk some about Madame Restell. So what what is happening here first of all, you know what, how do we define abortion prior to this period and then what what happens during these years in the 19th century, that really is what is still affecting our laws today, in the 21st century?

R. E. Fulton  30:02  
The question of definition is really the exact starting point we need to take here. Because today abortion means something that it didn't in the past, right? Today, abortion is the termination of a pregnancy, intentionally, at any stage of pregnancy, essentially. That's how it's used colloquially. Prior to the 19th century, even in the early 19th century, around when Josephine was born, that's not really what abortion was. And that's in part because there's a different understanding of pregnancy at that time. You don't have ultrasounds. You don't have pregnancy tests, you don't have any of the kind of medical clarity that we have now, which even now is not, you know, complete. There's a lot of gray areas there. But you don't have pregnancy tests, you don't have an ultrasound, you don't have any sort of reliable medical ways to kind of track and prove pregnancy. And so the idea of abortion as we have it today, doesn't really exist. In the early 1800s, it was pretty common for women to take medication in what was essentially their early pregnancy, to restore their menstrual cycle. And today, we can look at that and say, medically, today, we consider that an abortion. But that wasn't really the understanding at the time. And so from that sort of medical and cultural understanding, we get the way that abortion was dealt with in common. That was the sort of legal precedent that the United States took from England in the early 1800s. US common law says, you know, if a woman has passed the stage of quickening, if a woman can feel a fetus moving inside her, that's how you know. Okay, no pregnancy test, none of that. But when you can feel a baby kicking, you know, you're pregnant, for sure. After that point, if you poison that woman, if you harm her, if you try to end that pregnancy, that is abortion, that's illegal. But moving into the 1820s, 1830s, doctors start to get into and develop the field of embryology and start to understand more exactly what's going on there. And suddenly, we're able to track medically and sort of philosophically from the moment of conception, we have a clear idea of what's happening. And so you move into the 1840s, 1850s, you have some doctors who say, "Wait a minute. We know how this works. We know how it starts We know the process that leads to a baby. Cutting that thread at any point, surely, should be wrong." And there's there's a clear logic to this. And I think that is important to understand. I'm coming from a very pro choice perspective. But I think understanding the logic that comes with that new medical knowledge is important. And you have doctors who say, "Okay, look, we have this knowledge." And we're also simultaneously trying to fight for more professional authority. Those things kind of go together at this moment. And so you have doctors beginning to say, "Okay, we need to define pregnancy. We need to define abortion differently. And we need to get the law on our side. We need to sort of combine medical and legal authority in order to outlaw the practice of abortion." Now, some of this is, I think, probably an earnest effort to say like we see this, we think it's wrong, we're going to fix it. But that's not the only thing that's going on. We also have, in the mid 1800s, a rise in women doing the same thing they've been doing for a very long time, using medications to restore their cycle early in pregnancy. And we're seeing in particular, the documents show a lot more middle class white women doing this. And so you have the doctors who are pushing this new narrative, who are pushing this kind of fight for legislation, those are their wives. Those are their sisters. Those are their neighbors. And so there is also this concern about the sexual behavior of women in these elite circles. There's also a concern about the kind of maternal duties you know. If you think that a woman's  responsibility to society is to have kids and keep having kids, that's a concern, if they're not doing that. There's a concern about infidelity. There's a concern also about shifting demographics. You have a lot of immigrants coming in, you have a lot of different groups. After the Civil War, you're going to have a large free Black population. And so there's also a concern, okay, if our wives are having fewer children, we're about to be outnumbered. So there's a lot of things actually going on, in this shifting understanding of abortion and this push for new laws to criminalize it. And I think that is, I think that's the thing that's interesting about abortion. I think that's the thing that keeps it so central in our national political psyche, because it is about all of those things. And some of those things are very genuine, human universal values and concerns. And some of them are some pretty thorny political problems. And it's hard to untangle them all from each other. Still, even today, it is really, really hard to separate these things.

Kelly  36:20  
Yeah. So we should talk about Josephine's relationship with Tom. So this is Milton Thomson, goes by Tom. And this is a long arc of a relationship, leading right up to the end of your story. So what is going on here? The question of whether Josephine is a good woman comes up. But there's also I think, a very good question here about Tom's motivation and whether he is a good person and what is happening here. So can you talk some about their their long relationship, what that looks like and how it leads to the death of Tom's nephew?

R. E. Fulton  36:58  
There are so many ways to read the relationship between Josephine McCarty and Milton Thomson. So I'll try to start with what we know. What we know is that they grew up near to each other. They're both from the Utica area. She says that she knew him while she was in school, so when she was a teenager. He was a few years older than her. So they knew each other when they were young. And her story is that right before, right before she married Robert McCarty, she got a marriage proposal from Tom. She turned him down. She married Robert. So maybe for him, she's the one that got away, maybe for her, he's the one that got away. There's, there's this moment between them. I don't know how either of them felt about it. But they had that early relationship. Then she gets married, he gets married, she goes off to England, she goes through a whole lot there. She comes back alone. And they reconnect. Because she goes back to her mother's home. He's still in the area. He's married now. But they meet, they start talking and he starts coming over to her mother's house for dinner. And then he starts giving her money. Now that could mean a lot of different things. But it's a bit, raises some eyebrows, right? He started giving her money. This is a period where Josephine you know, abandoned by her husband, childless, is trying to find ways to get by. She's trying to find jobs. She sells books for a while. She does some political lobbying. And she decides what she really wants to do is go to medical school. And Tom says, "No, please don't go to medical school. I will give you 1000 American dollars, 1000 1850s American dollars to not do this. Start a store instead. Do something respectable." She says no. So she goes to medical school. They're still in contact at this time, but not necessarily talking regularly. Unclear. Then the war begins. And surely, let me back up. Because before the Civil War, there's an episode that we should talk about. So they reconnect in 1854. And for a few years, right, they're in contact, they're talking, sending letters to each other. He's giving her a little money on the side. But there's nothing necessarily untoward about this relationship. And then we get the story that Josephine tells that is perhaps the most confounding for me. I cannot find any evidence elsewhere about it. It's not the kind of story that you could find evidence elsewhere about, so I only have her story. And her story is that she was on a trip out of town, Tom followed her, unclear whether that's something that they arranged together. But he followed her. They both stayed the night in a hotel, separate rooms, he came to her room, he brought alcohol, she says she wasn't used to drinking, she got drunk, they had sex. First of all, we only have her word that those events took place. And even with those events, there's a lot of different ways to read it. This could have been totally mutual, they had a drink, and they had a good time in a hotel room. It's also really easy to read it as something coercive on his part. And because that's a story that she tells at trial, she's telling it to express that it's very clear that, you know, fits into this narrative that she's been wronged by men all her life. This is a story that actually really closely mirrors a lot of laws that existed at the time about, you know, these, these coercive sexual things that men do that don't quite fit the definition of rape, but that harmed women. So I don't know how to read that. But he never denies it specifically in any of the records that I've found. And it does seem clear that whatever the situation was between them, they did start having sex at that time. Right. So late 1850s. This is now a sexual relationship. She has divorced her husband at Tom's urging, and now she's gonna go to medical school. And then the Civil War begins. And she's got this idea to go down and wear men's clothing, and try to sneak across enemy lines. He goes with her, they stay a night in a hotel in New York City on the way down. And then a couple months later, she's been arrested as a spy, she finds out that she's pregnant. This is Tom's son. There's never any suggestion by anybody in all of the records, that it's not his son. She says that he tried to get her to have an abortion. She said, No. I don't know if that's true. But that's what that's what she says. I believe it. And there's another story that comes up at the same time that again, I don't, I don't know what to make of it. It exists out there. So I want to tell it, but I can't be sure it's true. The story is that around this time, Tom tried to have her killed, that he went down to the superintendent of the prison that she was being kept at. By this time, she's out. But he's, you know, she's still in the area, this prison superintendent still has some authority. The story is that Tom came to him and said, "Look, I'll give you money if you can get rid of her." And this upright honest superintendent said, "No, no, no, of course not. I won't do that." It's a very flashy story that only seems to show up after she's been arrested for murder later. So it's probably not true. But I have to wonder if it reflects a mistrust between them, essentially. She then goes, she settles down in Albany, she's starting a medical practice. Tom helps her out. He's still giving her money. He's still married. At this point, evidence suggests they're still sleeping together. One piece of that evidence is that she has another child. She has her daughter, Josie. Josie's paternity is a little bit disputed. There's a couple of different men that she says at various times were Josie's father, but she seems to sort of come down ultimately on the story that it's just Tom's daughter. And then something happens. And I don't know what it is. Because from 1845 when he initially proposed his marriage, to the mid 1860s, around 1867 or 68, all this time, whatever else we know or don't know, Tom, seems to be pursuing a regular relationship with Josephine, and regular in the sense of like, consistently pursuing right? He has sex with her, he gives her money. He gives her two children. They're in contact all this time. He helps her to set up this business. He helps her to buy a house where she has her physician's office, and then he decides he's done. And maybe something happened between them and it's the kind of thing that's never going to make it into the historical record. Josephine doesn't have a story about it. Josephine doesn't say anything at trial or afterwards, that would sort of suggest or identify a specific breaking point between the two of them. There's some suggestion because there's, there's a lot of back and forth with multiple mortgages on her house, multiple sales of the house, his brothers who are in business with him that got an insurance agency, his brothers are very closely involved. It's possible that they sort of pressured him and said, "You've got to cut her loose. This is an embarrassment to our family. This is getting too deep. There's two kids now. This is a liability." Maybe that's part of the story. Maybe the relationship ran its course, maybe something else happened. But Tom turns on her. And ultimately, the real breaking point, once he's decided that he's done is that he has her and the children evicted from their house. And it's not just their house, the roof over their heads. It's also where she has her business. So she has lost everything except her children whom she can't support now. There's three of them. Two of them, she claims are Thomson's children. And this is the event that sends her to Utica to confront him. She tracks his movements for a couple of days. She figures out when he gets on the streetcar in the morning. She goes, she gets on the streetcar right before him. And he happens to have family in town. His nephew, Henry Hall, he's a coal merchant in Ogdensburg. He's visiting Utica for the day, for the week. He gets on the streetcar at the same time, he sits down next to Tom. And this woman comes up to them. And Josephine says and this, this is a story we only have from her. We know that they talked. Other people saw that. But only she tells us exactly what they said. And what she says is that she told him, "Look, I brought your kids here. You threw them out in the winter to starve and freeze. You need to help us. You need to pay child support, you need to do something." And he said, "Go to hell with them." She shoots him in the face. I don't know what kind of aim she has, because she's right in front of him, and the bullet goes through his face sideways, and hits his nephew. The nephew dies. Tom is gonna live for years after this. And this is what lands Josephine in the insane legal situation that led me to her, that she's killed a man she wasn't trying to kill, and the guy she was aiming for survives.

Kelly  47:49  
So Josephine, by the time she gets to trial for the killing, she is no stranger to courtrooms. She has been on trial before. Could you talk some about the ways that her gender, her race, her class all play into her experience with the legal system, really in all of her trials, but especially in this this trial that she is on for killing a man?

R. E. Fulton  48:15  
The history of women on trial is such an interesting theme, because there's these really clear competing narratives. And it's actually something that was discussed at the time. You look at the newspapers in the months between her arrest and her trial, and you have a lot of people saying, "Okay, wait a minute. She's going to get preferential treatment because she's a woman. She's going to get off easy because she's a woman." But then we also have history of women. We also have, we look at everything we've just talked about. She's in a really vulnerable position in the world. She's in a really difficult position in the world. The question is, in the legal system, is she a victim, or is she actually in a really privileged position? And I don't think there's a single answer to it. What I will say is, as you say, she's got some experience in the courtroom. She was arrested for stealing from the hospital where she kind of did her unofficial clinical work. She also she was never that I can find arrested for providing abortions, but one of her patients did die. She went to the inquest. She cross examined the other doctors there. She's got some history in the legal system. She knows how to handle herself in a courtroom. And she knows how to present herself and specifically, the things that she has going for her are that she's white, she's Protestant. It goes very, very briefly, there's not a ton of discussion. But you know, there's a couple of newspaper articles where they're like, "She goes to church. Don't worry, she goes to church." So that's pointed her favor. And she belongs ultimately to that elite class of medical practitioners, the people who went to medical school, the people who can say, correctly or not, they have an MD. She claims in her advertisements at various places that she went to medical school in France, that she's got all of these honors. She doesn't, but she can claim to. She can present herself as that person. And in many ways, I think it comes back to the same thing, actually, that we observed with the abortion laws. The doctors pushing abortion laws, you know, they're thinking about a group of women who are their wives, their social circle. The jurors in this trial, Josephine fits in their social circle. She's from the area, she's from the same kind of social group. And what that means is that she has sympathy. She can use that tool for her case. There's an actual, like, interesting legal question in her trial of like, what to do with someone who we know she was trying to kill this guy, but then she killed this other guy she had no reason to do? That's an interesting legal question there. It sort of gets discussed. But the real question of the trial is, who was worse? Milton Thomson or Josephine McCarty, which of these people was worse? Which of these people do we want to punish? And that's actually something that you see in a lot of trials, like this, trials of women who killed or tried to kill men who wronged them in some way. The defense always becomes, "He was worse, he deserved this." And it's a successful argument in a lot of cases. And I think it's successful because, first of all, you know, we know this happens. Everybody who lives in the world knows that men are horrible to women sometimes. It happens in both directions. But there's a really familiar narrative here. It's something that people will have seen before. And it's something that the law can't really touch. Right? You look at everything that Tom has done to her over the years, you listen to her story, you listen to the story about Robert, this is horrible, horrible stuff. These men are never going to see a courtroom. Tom shows up for like five minutes on the last day, and then he leaves again. These men are never going to be held accountable for the things that they've done. And it's a jury of men weighing in on this question, and essentially saying, like, "This is not, this is not acceptable behavior from a man in our community. This is not something that we are going to approve." We get it, basically is kind of what comes out of this. But they get it in part because she's white, she's Protestant. She's from the Utica area, right? She has those things going for her. And so it's about so many things that are not the law. It's about so many things that have nothing to do with what's actually on paper as the point of the trial. 

Kelly  53:33  
 Again, just like today. So there is so much more in this book. It's an incredible read. Can you please tell listeners how to get a copy?

R. E. Fulton  53:45  
You can get a copy on the Cornell University Press website. It's also on Amazon. I think you can get it through Target, you get it through bookshop.org. The name of the book is, "The Abortionist of Howard Street." And it's available in hardcover or as an e book if you're an e book person. I'm not but they're very great. I just I can't I can't I need the page.

Kelly  54:16  
Is there anything else you wanted to make sure we talked about?

R. E. Fulton  54:19  
I could I could sit here and talk for 10 hours about Josephine. I think I think the main thing that matters to me about this book is that you encounter Josephine's story for the first time I encountered Josephine story for the first time. And I thought, "Wow, this woman is incredible. She's done so much. She's gotten into all of these situations. It's all of this drama and scandal about her life. She is extraordinary." She's not. She was an ordinary woman. Every single thing that Josephine did or experienced, including the things that seemed really explosive and impressive and unusual, another woman had done it before. Everywhere she went, women were already there. And so I think her story is unique in that so many different things sort of coalesce into one life. But women had been abortionists before Josephine. Women went to medical school before Josephine. Women, before and since, have had the same experiences with men, with motherhood, with the legal system. And so I think her story is a really great lens on all of these complex experiences that women had and have. It is just one version of them. But that, to me is what makes her interesting, important, and in her way, extraordinary is that she is actually very, very ordinary. She just has terrible luck.

Kelly  56:00  
And terrible taste in men.

R. E. Fulton  56:02  
Yeah, not the best. And we didn't even get to all of the men she slept with. There's a lot. 

Kelly  56:11  
Well, R.E, thank you so much for speaking with me. This is just an incredible story, and I really enjoyed learning about Josephine. Thank you.

R. E. Fulton  56:19  
Thank you so much. I also enjoyed learning about her. And I'm so excited to get to share her story with people like you.

Teddy  57:21  
Thanks for listening to Unsung History. Please subscribe to Unsung History on your favorite podcasting app. You can find the sources used for this episode and a full episode transcript @UnsungHistorypodcast.com. To the best of our knowledge, all audio and images used by Unsung History are in the public domain or are used with permission. You can find us on twitter or instagram @Unsung__History, or on Facebook @UnsungHistorypodcast. To contact us with questions, corrections, praise, or episode suggestions, please email Kelly@UnsungHistorypodcast.com. If you enjoyed this podcast, please rate, review, and tell everyone you know. Bye!

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