Well, continued Burroughs, I departed for the shores of that other
world, where human life was guarded with such care and jealousy. I
inquired for the courts of justice and for the halls of legislation
... I hurried thither; ... I elbowed my way up to the sources of their
law, and I had the mortification to discover that in almost every case,
their courts were contrived, not as I had hoped from the character
of the people, so as to give the public an opportunity of seeing
the operation of power at work in the high-places of our earth, for
the detection of guilt and for the security of virtue, but so as to
hinder that operation, whether evil or good, from being viewed by the
public. Everywhere the courts of justice were paltry ... everywhere
inconvenient. Seeing this I grew afraid for the people. I found but
one large enough to accommodate its own officers, and but one which
it was possible for a stranger to enter, even by the aid of money,
without much delay, difficulty and hazard. Ye do not believe me--ye
cannot believe that such things are, such courts or such men, or that
ever a price hath been fixed in a proud free country, for which a
few and but a few of a mighty and wise people may see, now and then,
wherefore it is that some one of their number is to be swept away from
the earth forever. What I say is true. To the Halls of Legislation I
proceeded--to the place where that law is made of which I have had
occasion to speak this day. I went without my dinner; I paid my
last half-crown to see the makers of the law--and I came away, after
seeing--not the makers of the law, but the door-keepers of their
cage--it is true that while I was there, I was happy enough to see a
man, who was looking at another man, which other man declared that the
wig of the Speaker was distinctly visible--
Are you mad?
Be quiet Sir--
You have broken the spell--the jury are beginning to laugh--
Leave the jury to me--what I have to say Sir, may provoke a smile, but
if I do not much mistake, a smile for the advantage of poor Martha. We
have been too serious ... we may do better by showing that we have no
fear--if the lawgivers of that country _are_ what I say they are--if
the judges are what I say they are, and what I shall prove them to
be--and if the people of that country are what I am afraid they are,
under such law--why should we bow to its authority?
Pho--pho--pho.... You are all at sea now.
Well Judges ... I enquired when there would be a trial to prove the
truth of what I had been told, and whither I should go in search of
a Temple of Justice, where I might see for myself how human life was
regarded by the brave and the free. I found such a temple, and for the
price of another dinner, was carried up into a gallery and put behind
a huge pile of masonry, which as it stood for a pillar and happened to
be neither perforated nor transparent, gave me but a dreary prospect
for my money.... Do not smile--do not, I beseech you--I never was more
serious in my life.... At last I heard a man called up, heard I say,
for I could not see him, called up and charged with I know not what
fearful crime--I caught my breath--are you ready Sir?...
Almost ... almost--fire away--writing as fast as he could make the pen
fly over the paper ... fire away for a few minutes more....
I caught my breath ... I trembled with anxiety.... Now said I to
myself, (To the lawyer; I am afraid I shall drop.)
No no, don’t drop yet ... fire away!
Now, said I to myself, I shall see one of the most awful and affecting
sights in the world. Now shall I see the great humanity of the law ...
the law of this proud nation illustrated ... the very judges becoming
of counsel for the prisoner ... and the whole affair carried through
with unspeakable solemnity. I addressed myself to a man who stood near
me with a badge of authority in his hand ... the very key wherewith he
admitted people at so much a head, to see the performance. Pray, Sir,
said I, what is that poor fellow charged with? He didn’t know, not he,
some case of murder though, he thought, (offering me a pinch of snuff
as he spoke) or of highway-robbery, or something of the sort ... he
would enquire with great pleasure and let me know. The case opened. A
speech was made by a prosecutor for the crown, a ready and a powerful
speaker. The charge a capital one. The accused ... a poor emaciated
miserable creature, was on trial for having had in possession, property
which had been stolen out of a dwelling-house in the dead of night.
Well, prisoner at the bar, what have you to say for yourself? said the
judge with a stern look, after the case had been gone through with by
the prosecutor. Now is your time ... speak, said the judge. I have
nothing to say for myself, said the poor prisoner; nothing more than
what I have said four or five times already. Have you no witnesses? No
my lord----
Soh soh, Mr. Burroughs! We understand your parable now, cried one of
the judges with a look of dismay. We all know what country that is
where a judge is a lord ... have a care Sir; have a care.... Be wary
... you may rue this if you are not.
I shall endure the risk whatever it be ... shall I proceed?
We have no power to stop you....
No my lord, was the reply of the prisoner. I could not oblige them to
appear; and they would not appear. How came you by the property? said
his lordship. It was left with me by a man who stopped at my house; he
wanted a little money to carry him to see a sick wife ... and as I did
not know him, he left this property in pledge. Who was that man? I do
not know my lord, I never saw him before ... but one of my neighbors in
the same trade with me knew him, and if you had him here, he would say
so.
Judges, you have now heard my story. You know what I was prepared to
see; you know what I expected. Here was a man who, for aught we know,
told the truth. But he had no witnesses--he had no power to make them
testify--he had no refuge--no hope--the law was a snare to him--the law
of our mother-country.
How so pray?
Property being found in his possession--property which had been stolen,
he was to suffer, because--mark what I say, I beseech you--_because he
could not prove his innocence_!
Tut--tut--tut--rigmarole! said the prosecutor.
Rigmarole Sir--what I say is the simple truth. Hear me through. The
moment that poor fellow was found with the property in his possession,
he was concluded by the law and by the judges of the law to be guilty;
and they called upon him to _prove_ that he was _not guilty_--
Nature of things, my good brother--
Well--and if it is the nature of things, why deny the existence of the
fact? Why do you, as all men of the law have done for ages and still
do--why say over and over again every day of your lives, that it is the
characteristic of the law, that law of which you are the expounders, to
regard every man as innocent, until he be _proved_ to be guilty? Why
not say the truth? Why quibble with rhetoric? Why not say that where
a man is charged with a crime, you are, in the very nature of things,
under the necessity of taking that for proof which is not proof? Look
you Sir--how came you by the coat you wear? Suppose I were to challenge
that cloth and put you to the proof, how could you prove that you
purchased it fairly of a fair trader?
I would appeal to the trader--
Appeal to the trader! If he had not come honestly by it Sir, would he
ever acknowledge that you had it of him? or that he had ever seen your
face before?
Well then--I would prove it by somebody else.
By somebody else, would you! Are you so very cautious--do you never
go abroad without having a witness at your heels? do you never pick
up anything in the street Sir, without first assuring yourself that
you are observed by somebody of good character, who will appear of
his own accord in your behalf, should you be arraigned for having
stolen property in your possession? What would you have to say for
yourself?--your oath would not be received--and if it was, there would
only be oath against oath--your oath against that of the trader of whom
you purchased, or the individual of whom you received the property--and
his oath against yours.--How would you behave with no witnesses to help
you out?--or with witnesses who would not appear and could not be made
to appear on your side, though your life were at stake?--nay, for that
very reason, for if your property only were at stake, they might be
made to appear--
Very well!
--Or with witnesses, who having appeared on your side, are not allowed
to make oath to what they say--lest they may be believed--to the
prejudice of our good king?
Really, cried one of the judges, really, gentlemen, you appear to be
going very wide of the mark. What have we to do with your snip-snap and
gossip? Are we to have nothing but speech after speech--about nobody
knows what--now smacking of outrage--now of treason? Are we to stay
here all night Sirs of the bar, while you are whispering together?
With submission to the court, said the Attorney-general--we have a case
put here, which would seem to require a word of reply. We are asked
what we should do if we were without witnesses--and the court will
perceive that the sympathy of the jury is relied on--is relied on, I
say!--on the authority of a case--of a case which!--of a case which I
never heard of before! The court will please to observe--to observe I
say!--that the prisoner at the bar--at the bar--has no witnesses--in
which case, I would ask, where is the hardship--where we cannot prove
our innocence--our innocence I say!--of a particular charge--we have
only to prove our character.
Here the Attorney-general sat down with a smile and a bow, and a
magnificent shake of the head.
Only to prove our character, hey?
To be sure--
But how--if we have no witnesses--
Very fair--very fair, brother B.
What if you were a stranger?--what if you had no character?--or a bad
one?
It would go hard with me, I dare say--and--and (raising his voice and
appealing to the bar with a triumphant look) and it _should_ go hard
with me.
Why then Sir--it would go hard with every stranger in a strange
country, for he has no character; and it would go hard with every man
who might be unable to produce proof, though he had a good character;
and with every man who might be regarded as a profligate or a
suspicious character--as a cheat, or a jew, or a misbeliever.
And what have such men to complain of?
Judges--Fathers--I appeal to you. I have not much more to say, and what
I have to say shall be said with a view to the case before you. I have
always understood that if a man be charged with a crime here, he is to
be tried for that particular crime with which he is charged, and for no
other till that be disposed of. I have always understood moreover, not
only in your courts of law and by your books of law, but by the courts
and by the books of which you are but a copy, that character is not to
be put in issue as a crime before you; and that nobody is to be put to
death or punished merely because he may happen to have no character at
all--nor because he may have a bad one--
You have understood no more than is true, said a judge.
If so ... allow me to ask why you and other judges are in the habit
of punishing people of a bad character ... nay of putting such people
to death ... for doing that which, if it were done by people of good
character, you would overlook or forgive?
How Sir.... Do you pretend that we ever do such things?
I do.... Will you say that you do not?...
Yes ... and waive the authority of a judge, and the irregularity of
your procedure that you may reply.
Then ... if what I hear is true ... if it is law I mean ... the judges
before me will not regard character?
Why as to _regarding_ character ... that’s another affair Mr.
Burroughs....
I implore you ... take one side or the other! Say whether you do or
do not regard character.... I care not for the degree, nor do I care
which side you take. For if you say that you do, then I say that you
act in the teeth of all your professions; for you declare in every
shape, every man of you, every day of your lives, that nobody shall
be punished by law but for that which he has been charged with in due
course of law ... technically charged with and apprised of ... and you
never charge a man with having a bad character....
Well, then ... suppose we say that we do _not_ regard character?
When character is not in issue, brother, added the chief-judge; for it
may be put in issue by the traverser--in which case we are bound to
weigh the proof on both sides along with the jury.
If you say that, in your character of judge ... and if you are all
agreed in saying that.... Lo, I am prepared for you.
We are agreed--we perceive the truth now.
Lo, my answer!--You have heard the whole of our case. You have heard
all the witnesses for the crown; you have gathered all the proof. Now
... bear with me, judges ... bear with me ... what I say is a matter
of life and death ... we have no witnesses ... we have not put the
character of Martha in issue ... all that you know of her, you know
from your witnesses, and they have not said a syllable touching her
character. Now ... fathers! and judges!... I ask you if that proof,
take it altogether, would be enough in your estimation, to prove ... I
beg you to hear me ... would it be enough to convict any one of your
number, if he had no witness to speak for him?... Ye are astounded! Ye
know not how to reply, nor how to escape; for ye know in your own souls
that such proof ... such proof and no more, would not be enough to
convict any one of you in the opinion of the other six.
Well Sir----what then?
Why then Sir ... then ye Judges--if that poor old woman before you--if
she be not on trial for character--on trial for that which has not been
charged to her ... by what you have now said, she is free. Stand up, on
your feet Martha! stand up and rejoice! By what ye have now said, ye
judges, that poor old woman hath leave to go free!
The judges were mute with surprise, and the lawyer started upon his
feet and clapped Burroughs on the back, and stood rubbing his hands
at the Attorney-general and making mouths at the jury--Capital! ...
Capital! ... never saw the like, faith--never, never ... never thought
of such a view myself ... but I say though (in a whisper) you did begin
to put her character in issue--tut--tut--yes you did, you rogue you ...
say nothin’--tut--tut--
Say nothing Sir!--excuse me. If I have said that which is not true, I
shall unsay it--
Pooh, pooh ... your argument’s all the same, and besides, you did not
go far enough to make Jerry Smith your witness ... pooh, pooh--what a
fool you are--
But the judges recovered their self-possession, and laid their heads
together and asked Burroughs if he had anything more to say.
More to say--yes--much more--enough to keep you employed for the rest
of your lives, ye hard-hearted inaccessible men! What--are ye so bent
upon mischief! Will ye not suffer that aged woman to escape the snare!
Ye carry me back all at once to the spot of which I spoke. Ye drive
me to the parable again. I saw the judges behave to their prisoner
as I now see you behave to yours; and I would have cried out there
as I do here, with a loud voice.... Are ye indeed the counsel for
the prisoner!--Why do ye not behave as other counsel do? But when I
looked up and beheld their faces, and about me, and beheld the faces
of the multitude, my courage was gone--I had no hope--my heart died
away within me. They were as mute as you are--and their look was your
look--a look of death. But where, said I, is the advocate for the
prisoner? why does he not appear? He has none, was the reply. What,
no advocate, no help--there is a provision of your law which enables
the very pauper to sue.... I have heard so, and surely he is not so
very poor, the man I see at the bar; why do not the counsel that I see
there unoccupied--why do they not offer to help him? They are not paid
Sir. Do they require pay before they will put forth a hand to save a
fellow-creature from death? Of course. But why do not the court assign
counsel to him?--The reply there was the reply that you have heard here
this day. The accused have no counsel in a matter of life and death ...
it is only by courtesy that counsel are permitted even to address the
court on a point of law, when they are employed by a prisoner.
But why do I urge all this? Are not we, and were not they, living in a
land of mercy, a land remarkable for the humanity of her laws? Do not
mistake me, fathers! I would not that the guilty should escape.... I
have no such desire. But I would have the innocent safe, and I would
have the guilty, yea the guiltiest in every case and everywhere,
punished according to law. To know that a man has committed murder is
not enough to justify you in taking his life--to see him do the deed
with your own eyes, would not be enough to justify you in putting
him to death--wherefore it is that however certain the guilt of the
accused, and however great his crime, he should have counsel....
Absurd!--
Yea--counsel, judge--counsel!
You would allow the guilty every possible chance of escape.
Even so, judge! every possible chance of escape. For the guilty have
some rights to guard--rights the more precious for being so few, and
for being in perpetual risk of outrage; the more to be guarded Sir,
_because_ they are the rights and the privileges of the wicked, who
have nothing to hope from the public sympathy, no hope of pity, no
hope of charity. Even so, Judge! for the innocent are liable to appear
otherwise. Even so--for till the trial be over, how do we know who is
guilty and who not? How do we know--how is it possible for us to know,
till the accused have undergone their trial, whether they are, or
are not unjustly charged? For the innocent as well as for the guilty
therefore, would I have counsel for the accused--yea, counsel, whatever
were the charge, and however probable it might appear--nay the more, in
proportion both to the probability and to the magnitude of the charge.
A fine theory that Sir. You have been abroad to much purpose, it would
appear.
Even so judge--even so. Such _is_ my theory, and I _have_ been abroad,
I believe, to much purpose; for if men are to die by the law, I would
have them appear to die by the law. By the law, judge--not by popular
caprice, popular indignation or arbitrary power. I would leave no
ground for sorrow, none for self-reproach, none for misgiving, either
to the public or to that portion of the public who have participated
more immediately in the awful business of death. I would have no such
case on record as that of Mary Dyer.... I would have no Elizabeth
Hutchinson offered up--no such trials, no such graves, no such names
for the people to be afraid of and sorry for, ages and ages after
the death of a miserable infatuated woman--a prophetess or a witch,
forsooth--
George Burroughs!
--A prophetess or a witch I say!--after she has been put to death no
man is able to say wherefore.
George Burroughs!
Who speaks?
George Burroughs, beware! cried a female who stood in a dark part of
the house, with her head muffled up--a deep shadow was about her and a
stillness like death.
I know that voice--be of good cheer--I have nearly done, though not
being used to unprepared public-speaking, I have said little that
I meant to say, and much that I did not mean to say; hardly a word
however even of that which I have said or meant to say, as I would say
it, or as I could say it, if I had a little more experience--or as I
could say it now on paper. And if I feel this--I--who have grown up to
a habit if not of speaking, at least of reading before a multitude;
I, who have been used from my youth up to arrange my thoughts for the
public eye, to argue and to persuade; what must another, taken by
surprise, wholly without such practice and power, what must he--or
she--or that poor woman at the bar feel, were you to put her into my
place, and urge her to defend herself to a jury? Pity her ... I implore
you ... consider what I say and have mercy upon her!--
Before you sit down, brother B.... what if you give us a word or two
of the parallel you begun?--I see the drift of it now--a word or two,
you understand me--take a mouthful o’ water--and if you could manage
to slip in a remark or two about the nature of the proof required in
witchcraft, I’ll be after you in a crack, and we’ll tire ’em out, if we
can’t do anything better.
I will--be prepared though--for I shall say _but_ a word or two--I am
weary; sick and weary of this--my throat is parched, and my very soul
in a maze of perplexity.
So much the better--they can’t follow you on t’other side.
Well, fathers! I pursued the inquiry. I found that even there, no
prisoner could have a compulsory process to bring a witness _for_
him into court, although such process could be had, backed by the
whole power of the country, to bring a witness _against_ him. And I
discovered also, that if a witness for the accused were so obliging
as to appear, they would not suffer him to speak on oath. I turned to
the officer--I take it, Sir, said I, that in such a case, you have
no punishment for untruth, and of course, that the witnesses for
the wretched man at the bar are not so likely to be believed as the
witnesses against him ... the latter being on oath?... Precisely. But
is he a lawyer? said I.... Who! the prisoner at the bar.... Yes.... A
lawyer--no. Is he accustomed to public speaking? He ... no, indeed!...
Nor to close argument, perhaps? nor to a habit of arranging his ideas
on paper?... I dare say not, was the reply. It would be no easy matter
for a man to preserve his selfpossession ... so at least I should
suppose, however much he might be accustomed to public speaking ... if
he were on trial himself, and obliged to defend himself?
There’s an authority for you in the books, brother B.--The man who
appeareth for himself, (in a loud voice) for himself, saith my lord ...
Coke, hath a fool for his client....
Saith Lord Coke, hey?
Pooh, pooh, (in a whisper) pooh, pooh; never mind who says it; give it
for his, and let them show the contrary, if they are able.
But if it be a case of life and death--where great coolness and great
precision were needed at every step, he would be yet more embarrassed?
No doubt. And is not the prosecutor a very able man? Very, Sir--very.
Chosen for that office, out of a multitude of superior men altogether
on account of his ability? Very true, Sir--very true--on account of
his ability and experience at the bar. And yet, Sir, said I--if I
understand you, that poor fellow there, who is now in such grevious
trepidation, so weak that he can hardly stand--his color coming and
going with every breath, his throat and mouth and lips dry with
excessive anxiety, his head inclined as if with a continual ringing in
his ears--if I understand you, said I, he is now called up to defend
himself, to make speech for speech before a jury, against one of your
most able and eloquent speakers; a man whose reputation is at stake on
the issue--a man who--if he be thwarted in his way, by a witness, or a
fact, or a speech, or a point of law, will appear to regard the escape
of the prisoner, whatever he may be charged with, and whether he be
innocent or guilty, as nothing better than a reproach to the law, and
high treason to the state--a man, to say all in a word, who dares to
behave in a court of justice--in a matter of life and death too--as if
the escape of a prisoner were disloyalty to the king--our father! and a
disgrace to the king’s Attorney-general--
Will you have done, Sir?
No ... no ... no!... _You have no power to stop me._ The jury could not
agree. Two of their number were unwilling to find the accused guilty.
They were sent back--it was in the dead of winter, and they were
allowed neither food, nor fire--and so, after a while they were starved
and frozen into unanimity--
Grant me patience! what would you have, Sir?--you appear to be
satisfied with nothing--I believe in my soul, George Burroughs, that
you are no better than a Reformer--
A shudder ran through the whole court.
Here was a pretty illustration of what I had been told by you, and by
such as you, and of what I believed before I went abroad, about the
humanity of the law--the humanity of British law! of that very law that
ye are now seeking to administer here, in this remote corner of the
earth. Ye are amazed--ye do not believe me--and yet every word I have
spoken is true; and that which is law there, ye would make law here.
The judges, we are told, are of counsel for the prisoner--God preserve
me from such counsel, I say!...
Five and one are six--six-and-sixpence, muttered a voice.
They never interfered while I was there, in favor of the prisoner; but
they did interfere two or three times, and with great acuteness too,
for it was a trial of wit among three, to his disadvantage, even as
ye have this day. The accused are held to be innocent there, even as
they are here, till they are proved to be guilty--so say the lawyers
there, and so say the judges, and so say all the writers on the law,
and so they believe, I dare say. And yet ... there as here, the man who
happens to be suspected of a crime is held to be ... not innocent of
the charge, but guilty, and is called upon to _prove his innocence_;
which if he fail to do, judgment follows, and after two or three days,
it may be, death. He had no counsel permitted to him where his life
was at stake, though he might have had the best in the whole empire in
a civil case affecting property to the value of a few pounds. He had
no power to bring witnesses ... the law would not allow him witnesses
therefore ... and if they appeared in spite of the law, that law put a
disqualification upon whatever they said in favor of the prisoner. And
after all this.... O the humanity of the law! ... the jury, a part of
whom believed him to be innocent were starved into finding him guilty.
What was I to think of all this? what of British law--that very law by
authority whereof, ye are now trying that woman for her life--what of
the--
Here Burroughs dropped into a chair completely out of breath.
Have you done Sir? said the chief judge.
He signified by a motion of the head that he must give up.
Very well Sir--You cannot say that we have not heard you patiently; nor
that we have hurried the case of the prisoners at the bar, whatever
else you may think proper to say. You have had such liberty as we
never granted before, as we shall never grant again; you have had
full swing Sir--full swing, and would have been stopped a good hour
ago but for the deplorable situation of the accused. To tell you the
plain truth however--I did hope--I did hope I say, that we should hear
something--_something_ to the purpose, before you gave the matter up--
Something to the purpose, judge!--Have a care--you know me--
Silence!
Judge--judge--I have said more than you six will ever be able to
answer, though you keep your heads together to all eternity--How can
you answer what I say?
How--in five words....
In five words!
I ask no more to satisfy all that hear me--my brethren of the bench,
the bar, and the people--but five words, I tell you.
And what are they, I do beseech you?...
_The--wisdom--of--our--ancestors._