University of Virginia Library

9. 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 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 be 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 proceedure 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 lie 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, where you 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 grievious 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
thawarted 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.