CHAPTER IX.
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 mylast 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 countryarewhat 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 hecould 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 alord ... 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 toprovethat he wasnot guilty—
Nature of things, my good brother—
Well—and if it is the nature of things, why deny theexistence 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 beprovedto 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 itshouldgo 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 toregardingcharacter ... 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 donotregard 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 oneof 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 Ispoke. 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 tojustify 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,becausethey 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. Suchismy theory, and Ihavebeen 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 caseon 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 aremark 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 saybuta 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 witnessforhim into court, although such process could be had, backed by the whole power of the country, to bring a witnessagainsthim. 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 mindwho 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 toprove 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 inspite 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—somethingto 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.