The Hanging of Nathan Foster - Traitor and Spy

by

Copyright © 2011. All rights reserved.

Imagine a gallows in a dusty town in the old west. A tumbleweed rolls by. The sheriff is leaning against a post, chewing a plug of tobacco, contemplating the hanging that will take place. A stranger sidles up, asks the sheriff "Why you stringin' the guy up?" The sheriff spits and says "Because he needs hangin' is why" Fade to Masonville, N.Y. in 1819.

Nathan Foster hired the biggest legal guns of the time to defend himself against the capital murder charge of killing his wife. But in the eyes of patriots who had fought long and hard in the Revolutionary War, Foster needed hanging regardless. They weren't about to let this guy go. He'd been an anathema for forty years.



Foster was from Cherry Valley, one of the oldest settlements in upstate New York on the western edge of the frontier. There were still Indians aplenty, who sided with the British in the war. Foster did not join either the Continental Army or the local militia, although he would have been of a prime age. Because of this, suspicion was aroused that he was in collusion with the British - a "cowboy" in Revolutionary War lexicon. It would be difficult to call him a British sympathizer since the man was probably not capable of it. It would be more accurate to say that Foster's spy-work went to the highest bidder - the British by a long shot.

Cherry Valley was in a strategic location - a good lookout point to forewarn other settlements of Indian activities. The town had been built precariously on a main trail the Indians used to travel from the Mohawk to the Susquehanna River and back. The settlers of Cherry Valley were rightfully nervous about Indian attacks after the Revolutionary War went into high gear. They were able to convincingly present the case in Albany to General Lafayette that they needed a fort built and an army garrison sent, the sooner the better. Gen. LaFayette agreed that protection was needed, but his resources were stretched to the limit so a compromise was made. Militia Colonel Samuel Campbell would have his house fortified and enclosed and would have the authority to call on militia forces whenever he deemed it necessary. From this sturdy fort above the settlement, a discerning eye could be kept not only on Indians and British, but on suspected spies as well.

Foster had land on the Schenevus Creek outside Cherry Valley, right on the Indian trail. It was known that he had been holding communications with the infamous Mohawk Chief Joseph Brant, furnishing him with provisions and information. According to an account later written by James Campbell, the son of Col. Samuel Campbell, Col. Campbell badly wanted Foster caught, but Foster was too elusive to catch even for Col. Campbell, a very distinguished and capable militia commander. In fact, it was so maddening they began to call his hideout "the devil's half acre."

As a measure of how how much value was placed on capturing Foster, a scheme was concocted that sent five men down the Susquehanna River to get a bead on Foster, with Sam McKean in the lead dressed as an Indian. (Sam McKean was the son of Captain Robert McKean, a well known hero of the war.) Still, Foster eluded them.

After the war, the end of which was indeterminate in places like Otsego County, Tories and British sympathizers were for the most part allowed back on the properties they had abandoned, although sometimes not. Whether they wanted to chance coming back and when, depended on the circumstances under which they had left. Some land in Otsego County was confiscated. Many former Tories accepted land in Canada that King George III had granted them, figuring they wouldn't be very popular back in their home towns. A few came back and were killed but they were the ones who committed atrocities that could never be forgiven.

Masonville Might Not Remember

The Fosters were never popular to begin with. They managed to stay in Cherry Valley until around 1800 and were gone before 1810 according to census information, presumably with cash to spare. The whole Foster clan decamped to Masonville, New York, a town a little more than fifty miles southwest of Cherry Valley. Nathan Foster had probably earned himself not only a handsome grubstake during the war but a notoriety that was lying in wait until the first time he made a serious misstep. Maybe he thought he wouldn't be known in Masonville, or maybe he didn't care, but it turned out that people had a long memory for traitors.

Foster had that one heavy and lifelong strike against him moving into Masonville, but it didn't take long for people to see that he was also an ill tempered, nasty man. Everyone seemed to like Eleanor, his wife, or at least felt sorry for her. Their children grew up to be respectable citizens.

Nathan Foster, at around 60 years of age, was accused of poisoning and killing Eleanor, "old El," with arsenic toward the end of January 1819. He had impregnated a hired girl and it was presumed that the reason he wanted to dose "old El" was so that he and the girl could live happily ever after. It sounds very cut and dried and yet the hard facts of the case mattered not nearly as much as the fact that he was nothing but a "stinkin' Tory" who finally went too far.

Two Dream Teams

No court case in Delaware County before or since has garnered so many heavy hitting trial attorneys in one courtroom as the Foster trial. The defense was the dream team of its day. Foster had hired the 46-year old former Major-General of the New York State Militia Erastus Root, a prominent lawyer and sitting member of the New York State Assembly in 1819. Hon. Samuel Sherwood also served the defense, an interesting match with Root since they had had serious political differences in the past and would again in the future. Sherwood had been a U.S. congressman for one term. He was in partnership with Col. Amasa Parker, a well known Delhi, N.Y. attorney also sitting for the defense. Completing the team was John Sudam, who went on to become a New York State Senator. To say that this was the best legal defense money could buy was an understatement. If it was perceived that Foster's defense was funded by what he had collected from the British from his spying days, it was one more reason to hate him.

Going up against this formidable team, Delaware County District Attorney William Elting would be joined in the prosecution by a 36 year old lawyer who was making a name for himself in state politics. His wife had died of tuberculosis almost five months before the trial, leaving him with 4 sons, ages 2-12. He didn't want to spend the hottest part of the summer in the wilds of New York, but being New York State Attorney General, since this was a capital case, he had a responsibility. New York's Governor DeWitt Clinton ordered him to go. His name was Martin Van Buren, later to become the 8th president of the United States.

There are some who would say this was a plum case for Van Buren, that hanging a spy and traitor would be a useful item on a political resume'. But he seemed genuinely to have preferred to stay in Albany, where he was worried about what his political rivals would be doing in his absence. Elting must have been glad to see Van Buren, with the prospect of facing those four brilliant, established lawyers alone.

The first witnesses for the prosecution were neighbors Nathan Baxter and his wife, who said they were summoned by Foster (from then on referred to as "the prisoner") on a January night a little after 8:00 p.m. - they were already in bed for heaven's sake - to come quickly because El was really sick. They threw on some clothes and went to the Foster house to watch El vomit until about midnight. They thought she had started to rally so they went back home. It was barely dawn when they were called again to the Foster home where they found El still throwing up and now gasping for breath and wracked with pain.

Van Buren elicited from Baxter that he had suspected poisoning, but hadn't wanted to say anything at the time. El died Friday morning around 11:00. Baxter claimed that the next time he went to the Foster house was Saturday morning. Polly Moshier was there, the hired girl, "wringing her hands and crying." Baxter had asked Foster how much tea El drank before she got sick and Foster had gotten defensive and told him there was no poison in it. Baxter had also sat with a very edgy Foster while the doctors were performing the autopsy (in the house, which was the custom - you couldn't go dragging a corpse all over the countryside.) When Van Buren asked Baxter to characterize Foster in general, he said in effect that he was a violent, crude and unhappy man. With Baxter for a neighbor, Foster must have wished he had chosen a more secluded place to live.

Early Friday morning, the Foster's son John left word for Masonville's own Dr. Pliny Smith to come to the Foster's as quickly as possible. It seemed like forever until he got there and he hadn't even had a chance to prepare any medicine before El up and died. Dr. Smith testified as to what they found at the autopsy and offered his opinion that El had definitely died of arsenic poisoning. (This was based on primitive testing processes available at the time. The chances of samples being contaminated at any point in the process were high.) Drs. Nathan Boynton and William Knapp of Bainbridge, who had also been present at the autopsy, corroborated what Dr. Smith had said - no doubt in their minds that El had died of arsenic poisoning.

Esther Shaw was next on the stand. She had worked for the Foster's for a few months the previous year. She said Foster hit on her every chance he got and offered her trinkets and such to let him have his way with her. Esther said Polly Moshier had returned to work for the Foster's a little while after Esther had been hired and it was no secret to her that Polly and Foster were involved.

When Esther saw Foster bring rat poison in the house she marched right over to the Baxter's and predicted that El would be poisoned within six months to a year. So Mrs. Baxter had to be hauled back on the witness stand to testify that she had been upset enough by what Esther had said that she had confronted El about it. El said Esther was so violent that she as soon would kill a person as not and furthermore El wasn't the least bit afraid of Polly. Apparently El and Esther hadn't worked well together.
The Foster's oldest son Robert testified that when it looked as if Dr. Smith was never going to show up that Friday morning, he urged his brother John to go to Bainbridge for another doctor. His father did everything he could to discourage or delay John from going. That Saturday, Robert said he had popped in the local store and heard rumors about his father killing El in order to be with Polly. He confronted his father about it, which Foster denied. Robert told him there was going to be an autopsy and Foster sort of broke down at that point. When Robert said the family was planning on a Sunday funeral, his father said that was too long to have a corpse around the house.

Robert himself broke down on the stand when he was asked about family dynamics. It was no surprise that his father was abusive to all of them but particularly to John, because he was the youngest and El's favorite. Robert said that in November his father had offered him the farm if he would give him a horse and some money and take care of El so he could get out of the country. It could be argued that that idea had come to him about forty years too late.

John Foster testified next. He confirmed Robert's testimony and added that when he visited his father in jail in February, his father accused him of having caused all the trouble because during the night that El was so violently ill, John had taken the horse to tell his sister about their mother's condition, thus preventing anyone from taking the horse to get a doctor that night. By then, Foster was saying that if anyone had poisoned El it was "that damned bitch Polly."

The Star Witness

The prosecution's witnesses to this point were unquestionably biased against Foster, each for his or her own reasons. Twenty-three year old Polly Moshier had more reason than any of them to hate him. Yet he was the father of her baby and she had in fact come back to the Foster's when she got the chance. Polly was a sympathetic character - she had been kicked around her whole life. She weeped piteously on the stand. Yet seen from an another angle, she might have stood to gain more than most if El was dead. Polly had access to the rat poison too. She had been arrested right along with Foster. After she had endured time in jail and after a three day coroner's inquest, she was absolved of having any part in the murder. Now she was being offered up for public shame and ridicule, all on Foster's account.

She started out by describing her employment at the Foster's starting in May of 1817. When Van Buren then told Polly she was going to have to be explicit about her intimacies with Foster, she started sobbing. Van Buren assured her that he was just as sorry as he could be, but her testimony was necessary. After she got hold of herself, she described how she had rebuffed Foster's attempted seductions and briberies of dollar bills and new gowns until that summer, when she finally caved in. At that time, he had offered her a two year old heifer but she did not say that was what clinched the deal or if she ever received it.

Around January the following year, 1818, it was obvious she was exploding with pregnancy. Foster dropped her off in Bainbridge, suggesting a woman to stay with until the baby was born and then saying she should fork the baby over to his son. She told him that was out of the question. From Bainbridge she landed in Roxbury, where she had the baby in March. She said they were mean to her there, so she went to Stamford, and then on to another home and finally heard that the Foster's wanted her back so she returned. It is not known if El ever knew Polly's baby was fathered by her husband.

Polly claimed she had learned her lesson by then and she wasn't about to let Foster touch her again. Not that that stopped Foster from trying for over 30 seconds. She said he kept offering to take her 100 miles away where no one would know them and they would be as good as married. (He had discovered the hard way that 50 miles was not enough.) Polly asked him where El fit into all of it. What Polly said next had to have sent the sheriff running for the rope - Foster said he had 'ratsbane' in the house and he "could fix old El." Polly said Foster had even approached her about running off the very morning El was dying.
Polly then described a scene that took place before the coroner's inquest that could have come straight out of a vaudeville act. The lawyer at the inquest, Sherman Page of Unadilla, cooked up a scheme to get Foster to admit in front of witnesses that he had poisoned El. He put two men in a room above Foster's so they could see and hear everything that was said and sent Polly in by herself. Apparently the two men got an eyeful but not one they expected. Foster was too cagey to say anything to Polly but that didn't mean he had no business to attend to with her. He wound up chasing her around the room with his clothes half off, trying to lift her skirt. Polly wasn't aware that they were being watched and to her credit, she kept him backed off. He eventually got angry and told her he'd be damned if he'd do anything to clear her name.

The prosecution wrapped up with Wareham Willis, Masonville's Justice of the Peace, acting coroner, and an acquaintance of Foster's who actually didn't seem to hate him. Willis said Foster hounded him about how the inquest was going every day and by the time Foster knew his goose was cooked, he offered Willis his farm if he would help him get out of the country. Willis said no, of course.

The Defense

For all the money that was being spent for Foster's defense attorneys, they offered only one main witness, but he was an outstanding one. Even today, superlatives remain inadequate to describe him. Dr. Joseph White was one of the most renowned surgeons of his time in addition to being a highly respected legal expert. He was from Cherry Valley and had known the Fosters for thirty years. He had been aboard naval ships during two Revolutionary War battles. It might be imagined that he would be the last person to speak in Foster's defense, but if nothing else, Dr. White was unimpeachably ethical and would never say anything untrue no matter who was paying him. That's what made his testimony very compelling even though in the end, it didn't help Foster.

The defense wanted to establish first that Foster had a valid reason for objecting to El's autopsy - that Foster was Irish and the Irish are "averse to having a corpse opened and would never consent to it."
Next Dr. White went over the four methods of determining the presence of arsenic, only one of which he considered foolproof and that one had not been performed in the Foster case. White would not be browbeaten into saying whether arsenic was the absolute cause of death. After some legal and medical semantics, Van Buren worded it such that Dr. White agreed to say there was nothing that rendered it improbable that El's death was occasioned by arsenic. Boiling out the double negatives, Dr. White really didn't commit one way or the other for the defense or the prosecution. More to the point, Dr. White was not present at the autopsy, so there was only so much he could say about it.

After Dr. White, three local men were called to discredit Esther Shaw's reputation as that of a busybody full of loose talk, but they admitted that they didn't know what she had said on the stand so they couldn't judge that.

El's brother was called on the stand last to testify that the family was prone to Cholera-Morbus. That was handily discounted by the prosecution because the disease doesn't produce the kind of stomach inflammation that El had suffered. With that, the defense was finished.

Midnight Summation

In their summation, the defense reiterated the reasons that there was enough reasonable doubt to acquit Foster. One point they hit hard was that El could have taken the rat poison herself. It was a valid point, but it was a possibility that could never be proven. The eminent Dr. White had put into question the opinions of the three local doctors for the prosecution who said El had definitely died of arsenic poisoning, neutralizing that damage somewhat. And that's all they really had.

Elting spoke briefly, but Van Buren really proved his mettle as a trial lawyer and orator as he held the standing attention of a hushed courtroom for over two hours, obliterating the defense's case point by point, without notes. It was one of the most riveting prosecution summations ever heard.

There had been no overnight break for the jury, typical of the time. Van Buren's summation had gone on past midnight. After the judge's instructions, the jury started deliberating at 4:00 in the morning. A few hours later the verdict was in. Foster had been found guilty and was sentenced be hanged in early August, in a little over a month.

Foster maintained his innocence to the end. However on three separate occasions that we know of, he had tried to enlist an outside party to help him escape, so possibly he went to the gallows believing to the last minute that he could disappear one more time - it had always worked for him in the past. In any case, admitting guilt was a no-win situation for him.

Psychological profiling is a useful tool in modern law enforcement. In examining Foster's case, we are presented with a 60 year old man with a history of disloyalty to family and country, widely disliked in the community. He had been married to El for over thirty years and in that time, it would be safe to assume that he had been a serial philanderer. He appeared to have enough money to do whatever he wanted.

The question then arises, why would he kill El at that point in time? He wasn't head over heels in love with Polly and he stood to gain nothing materially from killing El. He could have disappeared at any point before her death and even shortly after. If nagging or her mere presence had driven him to homicide, why didn't he do it ten or twenty years earlier?

El was over 60 years of age, and overweight by the standards of her day. We know now that stroke and heart attacks, particularly in women, can present with atypical symptoms similar to what was described about El's condition. The vomiting would be rare but not unheard of, enough to cast a shadow of a doubt in a murder trial, but apparently not in Nathan Foster's case. Dr. White went as far as he could without coming right out and saying that whatever El had in her stomach couldn't have stayed there long enough to kill her, what with her continual vomiting and thirst.

Esther Shaw had been described by El herself as violent, an odd term for someone that you simply didn't like. Esther had as much access to the poison as anyone in the household and made no secret of the fact that she and El were frequently at odds. She didn't care for the likes of Polly or Foster either, potentially adding another reasonable doubt in Foster's defense.

There's a good chance that Erastus Root and the other defense attorneys knew this was a losing case going into it. They were all political animals, so the publicity would have been appealing either way. They may have drooled at the chance to match wits with Martin Van Buren, although it could be argued that that hadn't quite worked out to their best advantage. And at the end of the day, they got paid whether Foster hung or not.

It is significant that Governor Clinton ordered Attorney General Van Buren to prosecute what may have appeared on the surface to have been an open and shut case. Martin Van Buren did as much as anyone in leading Foster to the gallows. In that, he was in the good company of men who forty years previously had thought Foster a dangerous enough risk to call in their own big guns to capture him. Whether Foster killed his wife or not, his hanging was a final satisfying footnote of the Revolutionary War - a spy who was finally caught - late, but not too late.

On August 6, 1819, Nathan Foster was hung by the neck until dead from a tall tree on Cherry Hill in Masonville. He was not buried with the rest of his family. Today his headstone is part of the foundation of a barn and his remains lie under a busy highway.
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(Author Bio) - Karen Bedford is a lifelong resident of Central New York with a particular interest in the 19th century. Through her work in genealogy, Karen was inspired to research and write about some of the more sensational aspects of the era, as well as normal rural life in Central New York.