On Monday morning the Court came in and Mr. Moody argued at length in support of his claim that the testimony given by Lizzie Borden at the inquest be allowed to go before the jury. It was a verbatim report of this testimony which Miss White would have testified to. Mr. Robinson made an extensive reply and in the afternoon it was decided that the testimony was incompetent, and therefore ruled out. Thus the strongest prop of the State’s case was broken down. Officer Joseph Hyde told the story of a search of the premises.
Medical Examiner Dr. William A. Dolan said he had been a practising physician for eleven years; “I first went to the Borden house at 11:45 a. m.; I was passing by the house; I was in there ten or fifteen minutes when the City Hall clock struck 12; I first saw Mr. Sawyer, then Dr. Bowen, Bridget Sullivan and Mr. Morse, also Miss Russell and Mrs. Churchill, Officers Allen, Mullaly and Doherty were there. I had a little talk with Lizzie Borden that morning; she was in her room; I asked her about that note and she said Mrs. Borden had received a note to go and see somebody who was sick; I asked her what had become of it, and she said she supposed she had thrown it in the stove; when I first went in I saw a form lying on a sofa; the end of the sofa was flush with the jamb of the dining room door; the body was covered with a sheet. Dr. Bowen and I went together; I looked at the body, touched it and saw the body was warm and that blood was still oozing from the wounds in the head; the head was resting on a small sofa cushion; a coat was under that and an afghan under that; I made no particular examination of the wounds; I then went upstairs to see Mrs. Borden. I got Mr. Kieran to take some measurements for me; some time after I noticed the blood was coagulated; Mrs. Borden was lying more on the left side of her face, so as to expose the rear of the right back of the head; there I found a handkerchief, it was an old one, of silk, and was bloody; it was near her head; I did not take the handkerchief, but it was buried with the rest of the clothes. I was only there two or three minutes at that time; I had a thermometer with me, but I didn’t use it; I found the temperature of Mr. Borden to be very high; I learned this from the hands; at that time the blood was dripping in two places down the head of the sofa; there was no blood on top of the carpet, but it had soaked in; I saw no coagulated blood on Mr. Borden; I touched the body of Mrs. Borden, and it was much colder than Mr. Borden’s. I made an examination of Mr. Borden’s wounds, and found there what seemed to be from eight to ten.” In his pocket book witness found eighty-one dollars and sixty-five cents in money; his watch and chain were in their usual place; there was a ring on his finger; witness collected a sample of the morning’s milk, in consequence of what was told him, and afterwards analyzed it. Continuing he said: “Then I went into the cellar and found some axes and hatchets; I saw one a claw hammer, which appeared to have been scraped. It was 12:30 or thereabouts that first day when I first saw those axes; I went away and went back again about 3 or 3:30; then I had the bodies photographed; the bodies were in the same position as when I first saw them except that I think Mrs. Borden’s hands were moved.”
The greater part of the forenoon of the eighth day was devoted to the examination of Dr. Dolan and he told a comprehensive story of what he had seen and done in his official capacity.
Prof. Edward S. Wood of Harvard College, had received the stomachs of the murdered Bordens and had tested them for prussic acid poisoning with negative results. He then said “afterwards they were analyzed in the regular way for other poisonous substances, with a negative result. There was nothing abnormal or irregular in the condition of the stomachs; assuming that they both ate at the same time and of the same kind of food, the difference in the time of death, from the condition of the stomachs, would be about one and one-half hours; digestion stops at death; I have heard all the evidence thus far, and taking all these facts and the examination I made myself, the most important facts to show the time of death are the condition of the blood and the condition of the stomachs and the heat of the bodies.” In this opinion he agreed with Dr. Dolan. He had examined all the hatchets and found no blood. All of the prisoner’s clothes, shoes and stockings were found to be bloodless, except a white skirt. This had one drop of blood less than the size of a pin’s head and on the back part eight inches above the hem. Dr. Frank W. Draper of Boston, medical examiner of Suffolk county, testified to the condition of the bodies and wounds at the time he assisted Dr. Dolan at the Oak Grove autopsy. He talked at length upon the kind of weapon which could have made the wounds and told of the way in which the blood might have scattered. Dr. R. W. Chever of Boston, had examined the skulls of the Bordens and testified as to the kind of weapon which made the wounds.
City Marshal Rufus B. Hilliard was the witness called. He testified as had the other officers about his search at the house. He said: “On Saturday evening following the killing, I went to the house in company with Dr. Coughlin; there was a large crowd of people present, perhaps two or three hundred people; I sent for officers and had the crowd removed to the street; then I went into the house, where I saw the prisoner, her sister and Mr. Morse; there was a conversation between Dr. Coughlin and the others; after we entered the parlor Dr. Coughlin asked that the family remain in the house for a few days; that there was much excitement and he thought it would be better they should remain there and not go on the street. I think he told them if they were annoyed by the people to send word to the city marshal or himself and they should be protected; Mr. Morse asked about the mail and he was told they had better send for it; then Miss Lizzie asked, ‘What, is there anybody in this house suspected?’ the Mayor said, ‘Perhaps Mr. Morse could answer that from what occurred last night;’ Lizzie then said, ‘I want to know the truth,’ and the Mayor said he was sorry to say it, but that she was suspected; then Emma spoke up and said, ‘We have tried to keep it from you as long as we could.’ Then the Mayor asked Lizzie where she was when the affair happened, and she said in the barn for twenty minutes, looking for lead sinkers; Lizzie said, after Emma spoke, ‘Well, I am ready to go any time.’” The witness was cross-examined at great length and told of all his connections with the case.
Dr. John W. Coughlin, Mayor of Fall River, said that on Saturday evening following the Borden murder he went to the house with the marshal; there was a large crowd present and he instructed the marshal to disperse the crowd; it was done; in the house the first person he saw was Miss Emma; then he saw Lizzie and Mr. Morse. “We all went into the parlor where I said, ‘I have a request to make of the family, and that is that you remain in the house for a few days, since I think it would be best for you all.’ Lizzie asked, ‘Why, is there anybody in this house suspected?’ and I said, ‘Well, perhaps Mr. Morse can answer better, as his experience of last evening might tend to convince him that somebody in the house was suspected;’ then Emma said, ‘We have tried to keep it from her the best we could,’ and Lizzie said, ‘Well, if I am suspected I am ready to go at any time;’ then Miss Lizzie, in answer to my questions, told where she was when the murders occurred; Miss Emma then said she wanted us to do everything we could for them, after I had told them to call on me for any protection needed.”
Mrs. Hannah H. Gifford said: “I am a cloak maker and did work for the Bordens. I made a sack for Lizzie in March, 1892, and had a talk with her about her stepmother. I spoke, and called Mrs. Borden, ‘mother.’ She said, ‘Don’t call her mother, she is only my stepmother, and she is a mean, hateful old thing;’ I said ‘Oh Lizzie, don’t say that,’ and then she said she always kept apart from her, and ate her meals alone.”
The evidence which Miss Anna H. Borden (not a relative) was about to give in relation to something she had heard the prisoner say about her stepmother was excluded.
Miss Lucy Collett who sat on the veranda of Dr. Chagnon’s residence most of the forenoon testified that she saw no one pass out across the Chagnon yard. Thomas Bolles was washing a carriage in Mrs. Churchill’s yard and saw no one. Patrick McGowan, Joseph Desrosiers and John Denny, stone cutters, were at work all the forenoon in John Crowe’s stone yard adjoining and back of the Borden premises, and they each swore that they saw no one pass out that way. Mrs. Hannah Reagan, matron of the Central Police Station and who had the care of Miss Borden at the time of the preliminary trial said: “On the 24th of August Emma came in to see Lizzie in the morning; I was in the room, cleaning up; she spoke with her sister and I went into a toilet room and hearing loud talk, looked out and saw Lizzie lying on her side and Emma bending down over her. Lizzie said: ‘You have given me away, Emma, but I don’t care, I won’t give in one inch,’ measuring on her finger. Emma said: ‘Oh, Lizzie, I didn’t;’ at the same time sitting down; they sat there until 11 o’clock, when Mr. Jennings came, but Lizzie made no talk at all with her sister after; never opened her mouth to her; when I first heard the noise of loud talking I was about four feet away, in a closet; when Emma left that morning there was nothing said by either and no ‘good-bye’ exchanged.” This testimony created a decided sensation. Cross-examined by Mr. Jennings—“Emma remained there in that room until you came, and when you came you said to Emma, ‘Have you told her all?’ and Emma said she had told her all she had to tell; Emma came back again in the afternoon, but I can’t tell just when; Mr. Buck was there, I am quite sure; he came every day. When Miss Emma came in the afternoon I can’t tell; there was no one there in the morning but her sister and you; I don’t remember whether Mrs. Holmes, Miss Annie Holmes or Mrs. Brigham were there or not; I know that Miss Borden looked more excited when you (Mr. Jennings) left the room than she did before. I do remember something about an egg one afternoon; it was over the fact that I said an egg could be broken one way and not another, and I made a bet with Mrs. Brigham about it; Lizzie took the egg and tried to break it her way, and failing, said this was the first time she ever attempted to do anything and didn’t succeed; when I spoke of the affair between the sisters I spoke of it as a quarrel; this was before the first hearing. I don’t know whether the story of the quarrel was published in the morning papers; I was asked about it by reporters; it was that very afternoon, and also in the morning; I never told any reporter that it was all a lie, that there wasn’t a word of truth in it; Mr. Buck spoke to me about it in my room, but I never told him it wasn’t true; I never said a word to Mrs. Holmes about it. There was a paper drawn up subsequently, in relation to this story, it was brought to me by Mr. Buck.” (Statement was here read, in which it was set forth that there had not been a quarrel between the sisters, and that she had never said so.) She said she never expressed a willingness to sign the paper, and that Marshal Hilliard never said a word to her about signing the paper; he never said, to her remembrance, “If you sign that paper you sign it against my express orders.” Mr. Buck never asked her about signing the paper if the marshal was willing. “The marshal told me to go to my room; there was no one in the room when I went back for I had the door locked and the key in my pocket; I never said to the marshal that I’d rather leave my place than have such lies told about me; I never had any conversation with Mrs. Holmes about this paper; I never said to Mrs. Holmes in referring to the story, ‘You know they didn’t quarrel because you were here and we were talking about the egg.’ The reporter to whom I told the story in the afternoon was Mr. Porter of the Fall River Globe; I never saw the contents of any paper, but Mr. Buck came to me and said he had heard of such a report, that he had seen it in a paper, and I said, ‘You can’t always believe all you see in the papers;’ he wanted me to sign the paper; said that if I did it would be all right between the sisters; I said I would go and see the marshal about it. We went down to the marshal’s office and he told me to go to my room, told Mr. Buck to mind his own business, and he would attend to his; the marshal said then what story I had to tell I would tell in court; I do not remember your (Mr. Jennings) being in the marshal’s room and I don’t remember your conversation with him; I never heard you say to the marshal ‘If you refuse to let this woman sign this paper, I’ll publish you to the world.’”
Eli Bence, a drug clerk, was then called. He was prepared to tell the story of how the prisoner attempted to buy ten cents worth of hydrocianic acid from him on the day before the murders, but Gov. Robinson objected. The Jury was sent out and counsel argued the question of the admissibility of the testimony. The State claimed that it would show the state of Miss Borden’s mind the day before the homicides. The Judges decided that it was incompetent and therefore must be ruled out. This was the second prop knocked from under the Government’s case. This ended the testimony for the prosecution and the case rested.
During the forenoon of the eleventh day, Andrew J. Jennings Esq., presented the defendant’s case as follows: “May it please your honors, Mr. Foreman and gentlemen of the jury,—I want to make a personal allusion before referring directly to the case. One of the victims of the murder charged in this indictment was for many years my client and my personal friend. I had known him since my boyhood. I had known his oldest daughter for the same length of time; and I want to say right here and now, if I manifest more feeling than perhaps you think necessary in making an opening statement for the defence in this case you will ascribe it to that cause. The counsel, Mr. Foreman and gentlemen, does not cease to be a man when he becomes a lawyer. Fact and fiction have furnished many extraordinary examples of crime that have shocked the feelings and staggered the reason of men, but I think no one has ever surpassed in its mystery the case that you are now considering. The brutal character of the wounds is only equalled by the audacity, by the time and the place chosen here: and, Mr. Foreman and gentlemen, it needed but the accusation of the youngest daughter of one of the victims to make this the act, as it would seem to most men, of an insane person or a fiend. I do not propose to go into details about the character of those wounds or the appearance that was presented. I think you have heard sufficiently about that already. But, Mr. Foreman and gentlemen, knowing what they were, the person who is arrested for doing the deed which I have characterized as I have was the youngest daughter of one of the victims themselves. A young woman, thirty-two years of age, up to that time of spotless character and reputation, who had spent her life nearly in that immediate neighborhood, who had moved in and out of that old house for twenty or twenty-one years, living there with her father and with her step-mother and with her sister—this crime that shocked the whole civilized world, Mr. Foreman and gentlemen, seemed from the very first to be laid at her door by those who represented the government in the investigation of the case. We shall show you that this young woman as I have said had apparently led an honorable, spotless life: she was a member of the church: she was interested in the church matters: she was connected with various organizations for charitable work: she was ever ready to help in any good thing, in any good deed, and yet for some reason or other the government in its investigation seemed to fasten the crime upon her. Now a crime like this naturally awakens at its first result a sort of a selfish fear in men. There is really an outcry of human hearts to have somebody punished for the crime. But, Mr. Foreman and gentlemen, no matter how much you may want somebody punished for the crime, it is the guilty and not the innocent that you want. The law of blood for blood and life for life, Mr. Foreman and gentlemen, even in its most stringent form in the past, never, except in barbarous and uncivilized nations, called for the blood of the innocent in return for the blood or life of the murdered one. Our law—and it is the law that you have sworn to apply to the evidence in this case—presumes every man innocent until he is proved guilty, not guilty until he is proved innocent. I know you may say it is the duty of the State to vindicate the death of one of its citizens. Mr. Foreman and gentlemen, it is a higher duty, and one recognized by the law of this State, that it shall protect the lives of its living citizens. The law of Massachusetts to-day draws about every person accused of this crime or any other the circle of the presumption of his or her innocence, and allows no juryman or jury to cross it until they have fulfilled the conditions required: until they show that it has been proved beyond a reasonable doubt that he or she is the guilty party, they are not allowed to cross the line and take the life of the party who is accused. The commonwealth here has charged that Lizzie Andrew Borden, in a certain way, at a certain time, killed Andrew Jackson Borden and Abby Durfee Borden with malice aforethought. And that alone is the question that you are to answer: Did she on that day commit that deed? Did she commit it in the way alleged, or to put it in its other form, have they satisfied you beyond a reasonable doubt that she did it? And what is a reasonable doubt? Well, I saw a definition, and it struck me it was a very good one. A reasonable doubt is a doubt for which you can give a reason. If you can conceive of any other hypothesis that will exclude the guilt of this prisoner and make it possible or probable that somebody else might have done this deed, then you have got a reasonable doubt in your mind. Now, Mr. Foreman and gentlemen, I want to say a word about the kind of evidence. There are two kinds of evidence, direct evidence and circumstantial evidence. Direct evidence is the testimony of persons who have seen, heard or felt the thing or things about which they are testifying. They are telling you something which they have observed or perceived by their senses. For instance, if this was a case of murder by stabbing, and a man should come before you and testify that he saw the prisoner strike the murdered person with a knife, that is direct evidence; that tends directly to connect the prisoner with the crime itself. Circumstantial evidence is entirely different and I want to say right here, Mr. Foreman and gentlemen—I call your attention to it now, and I do not think that the commonwealth will question the statement when I make it—that there is not one particle of direct evidence in this case from beginning to end against Lizzie Andrew Borden. There is not a spot of blood, there is not a weapon that they have connected with her in any way, shape or fashion. They have not had her hand touch it, or her eye see it, or her ear hear it. There is not, I say, a particle of direct testimony in the case connecting her with this crime. It is wholly and absolutely circumstantial. In proving a murder it is necessary for the government to prove that all of the facts existed which to your minds make you morally certain that the murder must have followed from it. In other words, in circumstantial evidence it is simply an opinion on your part, it is simply an inference drawn by you as to the facts that are proved as to whether the essential issue has been proved or not.” Here Mr. Jennings cited several cases intended to show how uncertain is circumstantial evidence. Continuing he said: “It is not then, as I said before I started upon this long talk about circumstantial evidence, and I hope you will pardon me, for I think it is very important that you get this point in your mind, it is not for you to unravel the mystery of how he died. It is not for you to withhold your decision until you have satisfied your mind as to how it was done, and just who did it. It is, have they furnished the proof, the proof that the law requires, that Lizzie Andrew Borden did it, and that there is absolutely no opportunity for anybody else. Now, Mr. Foreman and gentlemen, I have taken a little more time than I intended to in discussing the question of circumstantial evidence. I have said that it was necessary for them to prove beyond a reasonable doubt the allegation of the indictment. Circumstantial evidence has often been likened to a chain. These facts which have to be proven in order to allow you to draw the inference as to her guilt or innocence have been called links in the chain, and every essential fact, Mr. Foreman and gentlemen, every essential fact in that chain must be proved beyond a reasonable doubt—every one of them. You cannot have it tied together with weak links and strong links. You cannot have certain facts in there which you believe and tie them to some other facts of which you have a reasonable doubt. You cannot put them together. You must throw aside every fact about which you have any reasonable doubt, and unless with the lines which you have left you can tie this defendant to the body of Andrew J. Borden and Abby Durfee Borden, you must acquit her. That is the law, and that is the law you have sworn to apply to the evidence. Now Mr. Foreman, we contend that with the evidence that has already appeared in this case, and what will be shown to you, there is absolutely no motive whatever for the commission of this crime by this defendant. They have not a scrap of evidence in the case but that which was given by Mrs. Gifford, and you have heard also the evidence of Bridget Sullivan. But it may be said that it is not necessary to prove the motive. Somebody killed them; what motive did somebody else have? We cannot tell, Mr. Foreman and gentlemen. One of these persons that is killed is this girl’s own father. And while in direct evidence, where the person was seen to kill, where they have been directly connected with the killing, it is of little or no importance whether a motive is shown or not, (if you kill, the law infers a motive, the law infers a motive there, direct evidence connects you with the crime,) yet, where, Mr. Foreman and gentlemen, you want the motive in order to have it as one of the links in the chain which connects the crime with its defendant, it becomes of tremendous importance. Tremendous importance; and we shall show you, if not already shown that this defendant lived quietly with her father; that the relations between them were the relations that ordinarily exist between parent and daughter. We shall show you by various little things, perhaps, that there was nothing whatever between this father and his daughter that would cause her to do such a wicked, wicked act as this. And I want to say right here, Mr. Foreman and gentlemen, that the government’s testimony and claim, so far as I have been able to understand it, is that whoever killed Abby Durfee Borden killed Andrew J. Borden; and even if they furnish you with a motive on her part to kill the step-mother, they have shown you absolutely none to kill the father. Absolutely none; unless they advance what seems to me the ridiculous proposition that she, instead of leaving the house after killing the mother, waits there an hour or an hour and a half for the express purpose of killing her own father, between whom and herself there is shown not the slightest trouble or disagreement whatsoever. In measuring the question of motive you have got to measure it in this case as applied between the defendant and her father, because, as I understand it, the government claims that whoever killed one killed both. Now as to the weapon, Mr. Foreman and gentlemen, I do not know as it is necessary for me to say much about that. The blood that was shown upon the axes, which was guarded so carefully at first in this case, as shown by the evidence, has disappeared like mist in the morning sun. The claw-headed hatchet that Dr. Dolan was so sure committed the deed at the Fall River hearing, so sure that he could even see the print which the claw head of the hatchet made in the head of Mr. Borden has disappeared from the case. And I would like to remark in passing, Mr. Foreman and gentlemen, that it didn’t disappear until after Prof. Wood had testified so absolutely on that, to the counsel for the defense, glorious morning in Fall River, that there was not a particle of blood upon either one of those hatchets, and that they could not be cleaned in any reasonable time from blood if they had been used in killing those persons.
“And Mr. Foreman and gentlemen, I want to call your attention right here that there has not been a living soul put upon the stand here to testify that they saw Andrew J. Borden come down street from his house. From his house to the Union Savings Bank he was actually invisible. Was it any easier for him to be than it would be for somebody escaping from this house if they walked quietly away? But we shall show you, in addition to that, there were other strange people about that house; people who have not been located or identified. We shall show you that the government’s claim here about Miss Lizzie’s not having been out to the barn is false, and that this—well, if it was not for the tremendous importance, I should be tempted to call it cakewalk of Officer Medley in the barn, exists in his imagination alone. We shall show you by evidence which I think will convince you—as we are not bound to convince you, beyond a reasonable doubt, that people were up and around and in that barn and all over it before Officer Medley opened the door. And I think we shall satisfy you that Miss Lizzie did go out to that barn, as she stated in those conversations, and was out there when this deed was committed, so far as Mr. Borden was concerned. As to the burning of this dress, we shall show you that it did have paint on it, according to the statement which was made by Miss Lizzie in the testimony of Alice Russell; that it was made some time in May; that soon after it was made this was got upon it; that the dress was soiled and useless, and that it was burned there right in the broad light of day in the presence of witnesses, with windows open, with the inside door open, with officers on every side of that house. And so, Mr. Foreman and gentlemen, without spending further time, we shall ask you, if you believe this testimony which has been offered or drawn out, rather, from the government witnesses by the cross-examination of the defense, supplemented as it will be by the evidence which I have suggested, we shall ask you to say in view of the presumption in favor of human nature, in view of the feelings which exist between a father and a daughter who stand here, so far as the evidence to-day is concerned, just as every other father and child stood, from the presumption of innocence which the law says you shall consider, from the fact that there is no blood, not a spot upon her hand, her head, her dress or any part of her, no connection with any weapon whatever shown by any direct evidence in this case, with an opportunity for others to do the deed, with herself in the barn when the deed was done, we shall ask you to say, Mr. Foreman and gentlemen, whether the government has satisfied you, beyond a reasonable doubt, that she did kill not only her stepmother, Abby Durfee Borden, but her loved and loving father, Andrew Jackson Borden, on the fourth day of August last.”
The first witness for the defense was Sarah R. Hart, of Tiverton, and she said: “I knew Andrew J. Borden by sight, and knew where he lived; I had a sister who lived in the Dr. Kelly house some fifteen years, and I was in the habit of going there frequently; on the day of the murders I passed by Mr. Borden’s house with my sister-in-law, Mrs. Manley; it was about 9:50; we passed by the north gate and stopped there to speak to my nephew, who was there in a carriage, and went up to the back of his carriage. While I was there I saw a young man standing in the gateway; it was not Mr. Borden; he was resting his head on his left hand, his elbow being on the gatepost; I was there five minutes and he was there when I went away.”
Charles S. Sawyer was then called: “I was in No. 61 Second street, Mr. Rich’s shop, when I heard that a man had been stabbed, and I went out on to the street; I saw Mr. Hall and Miss Russell; she was going up on the other side of the street and I went over to talk with her; I walked along with her until I got to the gate of the Borden house, when I turned around and walked away; when I turned away, I met Officer Allen at Mrs. Churchill’s gate; I went back with him and he put me on guard at the side door, after we had been in the house. When I was in there Miss Russell, Mrs. Churchill, Miss Lizzie and Miss Bridget Sullivan were in the kitchen; Miss Lizzie was sitting in a rocking chair and the others seemed to be working over her, fanning her and rubbing her hands; I was close to her all the time; she appeared to be somewhat distressed; I saw no signs of blood on her head, hair, hands, or dress; I cannot tell what kind of a dress she had on, whether it was dark or light; after that I was back and forward in the entry, and when people came I let them in; sometimes I was out on the steps.”
Mark Chace testified to having seen a strange man in a buggy in front of the Borden house that forenoon.
Dr. Benjamin J. Handy. “I went by the house on the morning of the murder at 9 and 10:30; saw a medium-sized young man very pale in complexion, with eyes fixed on the sidewalk passing slowly towards the south; he was acting strangely: in consequence of his appearance I turned in my carriage to watch him; he was acting different from any person I ever saw on the street in my life; he was agitated and seemed to be weak; he half stopped at times and then walked on; he seemed to be mentally agitated, by the intensely agitated expression on his face; I think I had seen him before, some other day; there was nobody else on the sidewalk.”
John J. Manning, reporter. “I first heard of the Borden murder some time before 11:30; Mr. O’Neil, city editor of the Fall River Globe, told me to go up Second street as there had been a stabbing affray there, and I ran most of the way; when I was going there I saw Mr. Cunningham, Bolles and one or two others; I went into the yard and up to the house, and found Mr. Sawyer at the door; he wouldn’t allow me to go in, and I sat down on the steps. Dr. Bowen came, but I wasn’t allowed to go in; then Officer Doherty and Mr. Wixon came and I was allowed to go in with them; I went into the kitchen and found Miss Borden, Miss Russell and Mrs. Churchill near her, fanning her; went into the sitting room and Dr. Bowen showed me the body of Mr. Borden and described the wounds; then I went up in the guest chamber with Dr. Bowen; my recollection as to this room is that it was not very light; Officer Doherty pulled the bed away so a better view could be obtained of the body; then I went down stairs and into the kitchen, but the people had gone from there; Bridget Sullivan was sitting on the back stairs; I can’t say how long I had been in the house; but when I came out I think I saw Mr. Fleet on the north side of the house; then I went around on the east side, walked along the Kelly fence, walked along a pile of lumber and then came to the barn, where I think there were two or three persons inside; there were other people about the yard, but I don’t recall any boys there. Coming out of the barn, Walter Stevens and I went around the house looking for footprints; we tried the cellar door, but found it fast; I never saw Medley there; I got back to the office at 11:50; I remember the story of the publication of Mrs. Reagan’s story, and I had an interview with her; I think it was the same night of the publication; in answer to a question from me, she said there was nothing in it; I wanted to know whether it was true or not, and I wanted a negative or affirmative statement.”
Thomas F. Hickey, reporter, of the Fall River Globe. “As reporter I saw Mrs. Reagan on Friday about the story referred to above; I said: ‘I see you’re getting yourself in the paper, Mrs. Reagan;’ she said: ‘Yes, but they have got to take that all back;’ I asked her about the quarrel and she said there had been no quarrel; I asked her if she had repeated any of the words of the sisters; asked her if there was any truth in the report, and she said absolutely none.” Cross-examined—“I represent the Boston Herald, and the Boston Globe published the story. The Globe had what is called a ‘scoop,’ although I understood that morning that the Herald had published the story; I went into her room where she was on duty and was alone; I knew her; I was sent by Mr. Billings and was after something to offset the Globe’s ‘scoop.’”
Mrs. Mary R. Holmes, Fall River, wife of Charles J. Holmes. “I know Miss Borden and have known who she was from childhood; she is a member of the church I attend, the Central Congregational; she has been a member five years and has taken part in much of the church work; I was engaged with her in some of the special work of the church; she was on the hospital board with me, but she was engaged in the Chinese work while I was in the Bible class; I am considerably older than she. I was but little acquainted with Mrs. Abbie D. Borden, although she was a member of the same church; I have seen Miss Lizzie Borden and her stepmother at church together; I first heard of the Borden murder at 11:45; I went to the house about 1 o’clock and sat down in the kitchen; someone told me soon after that Lizzie would like to see me; she was in her room and some men were talking with her; I don’t think Officer Fleet was there then; I think Dr. Bowen came up a few minutes after, and before Officer Fleet came; we locked the door because there were so many men about that we didn’t want them to come in the room. I had a talk with Mrs. Reagan about the quarrel story, and she said, ‘Mrs. Holmes, you know it is not so.’”
Charles J. Holmes, Fall River, banker, testified that he had lived in Fall River fifty years; “I know Miss Lizzie Borden; I was present at the hearing on the first day in the Fall River court house; I know about the paper given Mrs. Reagan to sign; it was read to Mrs. Reagan; I heard it read; I have a copy of the original paper in my pocket; I have a copy of the newspaper in which it was published also.” Here witness produced a copy of the Fall River Herald saying, when he saw it, that he supposed it was a copy of the Daily News of that city, but after diligent search the article was found and vouched for by Mr. Jennings. Witness was shown a type written copy of the same, identified it and read it; it was essentially a denial of the story. “It was read to Mrs. Reagan and she said it was true and that she would sign it, if the marshal would allow her; then Mr. Buck and she went down to the marshal’s office; then they came back and went into the matron’s room, and I don’t know personally what happened there; down stairs, after the marshal refused to allow her to sign, I had a part in the altercation which ensued.”
Cross-examined—“I heard Mr. Jennings’ voice and a reporter whom I think was Mr. Porter; there was a very heated conversation, and I had an idea that he was connected with a Fall River paper; I attended the trial all through as a friend of Miss Borden; I don’t think that Mrs. Reagan had ever been summoned as a witness, and the only reference to the taking back of anything was as to what was published in a newspaper; the day was one of a great deal of excitement; I was trying to get a denial from Mrs. Reagan of the story over her own signature, and it had no bearing upon the case then going on in court; it was simply to correct one newspaper story; she never signed it.”
John R. Caldwell, reporter, New York. “I reported the trial in Fall River; I recall the date when Mrs. Reagan was asked to sign the paper, and saw it read to her, but was too far off to hear what was said; Mrs. Reagan took the paper to Marshal Hilliard and he said if she signed it, it would be against his orders; then she went out and he ordered me out.” Cross-examined—“I don’t know that Hilliard said she would say what she had to say in court; there was quite a crowd in the corridors when Mrs. Reagan went down, most of it being reporters; Mr. Percy, another reporter and I were the only ones who went into the office; Mr. Percy is now in Italy.”
Mrs. Mary E. Brigham, Fall River. “I know Lizzie Borden, and have known her all my life; we were life-long friends, and attended the same church; I visited her quite frequently; Mrs. Reagan told me one day, after court, when we were in the matron’s room, about a quarrel between the sisters; I saw Mr. Buck with a paper in his hand, which he read to her; they both went out, and she came back mad; she said she was willing to sign the papers, but the marshal wouldn’t let her; that she would rather leave her place than to stay where she had been lied about; that it was all a lie and there had been no quarrel.”
Miss Emma L. Borden, sister of Lizzie Borden. “We have lived in the house we now live in twenty-one years last May; at the time of the murder Lizzie was possessed of property as follows: $170 in the B. M. C. Durfee Safe Deposit and Trust Co., $2000 in the Massasoit National Bank, $500 in the Union Savings Bank, $141 in the Fall River Five Cents Savings Bank, two shares of the Fall River National Bank stock, four shares of the Merchants Mfg. Co. stock and five shares of same, another date. My father wore a ring on his finger,” said witness, after the property list had been read; “it was given him by Lizzie; she had worn it herself before; he constantly wore it after, and it was buried with him; I have an inventory of the clothes in the closet on the afternoon it was searched, made up about a week ago, from recollection; there were eighteen or nineteen dresses in there; only one belonged to Mrs. Borden; the others were Lizzie’s and mine; there were ten dresses there in which blue was a marked color; eight were Lizzie’s, two were mine; I was there when the search was going on. Lizzie and I both went to the attic to assist them in opening a trunk; we never made the slightest objection to their searches and told them to come as often as they could and make as thorough searches as they could; the Bedford cord dress was made the first week in May at our home; it was a very cheap dress, twelve and a half or fifteen cents a yard, and about eight or nine yards in it; plainly trimmed; not more than two days were used in making the dress; Lizzie and I assisted, as we always did; the work was done in the guest room where it was always done; the dressmaker made several for us at the same time. The painters began work after the dress was made; Lizzie got some paint on this dress within two weeks after it was made; she got the paint on the front breadth and on the side; that dress was hanging in the front closet on the day I came home; I know because I went in to hang up a dress and found there was no nail. I said, ‘You have not destroyed that old dress yet; why don’t you do so?’ It was very dirty, badly faded, and I don’t remember having seen her use it for some time; it couldn’t have been made over because, besides being badly soiled, the material and collar were such as to render it impossible; it was a very long dress, an inch and a half longer than her pink wrapper; the sleeves were full and the waist was a blouse; the back skirt was longer than any other dress except those cut en train. She had no other dress which she could have got on over that dress, because they were too snug; she could not have had it on under the pink wrapper, because it would have shown; the next I saw of the Bedford cord dress was in the kitchen on Saturday, when I heard my sister’s voice; I looked around and saw her with the dress on her; she said, ‘I’m going to burn this old dress,’ and I said, ‘I would,’ or ‘Why don’t you,’ and turned away; I didn’t see her burn the dress; Miss Russell was there at the time. On Monday Miss Russell came to us in the dining room and said she had told Mr. Hanscom a falsehood, and I asked her what that was for; she said he asked her if all the dresses were in the house that were there at the time of the murder, and she had said yes; and then it was decided between us all that she should go and tell Mr. Hanscom she had told a falsehood; my sister said at the time, ‘Why didn’t you tell him about it; why did you let me do it?’ I remember the story about the quarrel between my sister and I; it was told me by you (Mr. Jennings) the morning the story was published; I never had any such conversation with my sister as was reported; there was never any trouble or quarrel in the matron’s room between us while she was there or anything that could be construed into a quarrel; Lizzie never did put up her finger and say anything about giving in; there was no conversation about you (Mr. Jennings) telling her (Lizzie) all.”
W. T. BILLINGS.
Mrs. Mary Raymond, dressmaker. “I have done dressmaking for Lizzie Borden at her home; I also worked for Mrs. Borden; I made some dresses for Lizzie last spring (1892); I went to the house the first week in May and was there three weeks; the Bedford cord dress I made, the first one because she needed it; it took about three weeks and the sisters helped me; it was a light blue dress with a dark figure; it was made with a blouse waist and full skirt; the skirt was longer by half a finger than she had been in the habit of wearing; it was a cheap cotton dress with little trimming. The painters were painting the house when Lizzie was wearing the dress; she put it on as soon as it was done; I saw the dress after it was ‘painted’; the paint was on the front and back; she had an old wrapper which this was to take the place of; she cut some pieces out of the old wrapper while I was there and took it down stairs; she couldn’t get that dress on under any other dress.”
Hyman Lubinsky was called, and there was a show of interest manifested in the audience. “I am a pedler, and remember the time of the Borden murder, but I did not know where the house was until afterwards; I keep my horse at Gardner’s stable; that morning I went by the Borden house in my team, leaving the stable a few minutes after. When I got to the Borden house I saw a lady come out of the barn and walk to the side door steps; she had on a dark colored dress and nothing on her dress; I don’t remember whether she went into the house; I was in my team; I know the servant and have delivered her ice cream; I am sure she was not the lady I saw approaching the house.” This ended the testimony for the defense and the court adjourned until Monday.
On Monday morning Ex-Governor George D. Robinson made his plea for the prisoner which was as follows:
May it Please Your Honors, Mr. Foreman and Gentlemen—One of the most dastardly and diabolical of crimes that was ever committed in Massachusetts was perpetrated in August, 1892, in the city of Fall River. The enormity of it startled everybody, and set all into diligent inquiry as to the perpetrator of such terrible acts. Our society is so constituted, gentlemen, that every man feels that the right must be done and the wrong punished and the wicked doer brought to his account as promptly as due procedure of law will permit. Here, then, was a crime with all its horrors, and well may those who stood first to look at the victims have felt sickened and distressed at heart, and human nature be broken so that the experience of a lifetime will never bring other such pictures. “Who could have done such an act?” says everybody. In the quiet of home, in the broad light of an August day, upon a street of a populous city, with houses within a stone’s throw, nay, almost within touch, who could have done it? Inspection of the victims disclosed that Mrs. Borden had been slain by the use of some sharp and terrible instrument, inflicting upon her head eighteen blows, thirteen of them crushing through the skull; and below, lying upon the sofa, was Mr. Borden’s dead and mutilated body, with eleven strokes upon the head, four of them crushing the skull. The terrors of those scenes no language can portray. The horrors of that moment we can all fail to describe. And so we are charged at once, at the outset, to find somebody that is equal to that enormity, whose heart is blackened with depravity, whose whole life is a tissue of crime, whose past is a prophecy of that present. A maniac or fiend we say. Not a man in his senses and who has heart right, but one of those abnormal productions that deity creates or suffers, a lunatic or a devil. So do we measure the degree of character or want of it, that could possibly prompt a human being to such acts. They were well-directed blows. They were not the result of blundering. They were aimed steadily and constantly for a purpose, each one finding its place where it was aimed, and none going amiss on the one side or the other. Surely we are prompted to say at the outset that the perpetrator of that act knew how to handle the instrument, was experienced in its control, had directed it before or others like it, and it was not the sudden, untrained doing of somebody who had been unfamiliar with such implements. Now, suspicion began to fall here and there. Everybody about there was called to account so far as could be. That is proper. That is right and necessary. Investigation proceeds. The police intervene. They form their theories. They proceed to act. They concern this one and that one. They follow out this and that clew. They are human only. When once a theory possesses our minds you know how tenaciously it holds the place, and how slow the mind is to find lodgment in something else. Now, no decent man complains of investigation. No one says there ought not to have been anything done. Everything ought to have been done. Nay, more, we say everything was not done and that the proper pursuit was not taken. Now, proceed with this matter a little and let us see how it stands. A person is charged with a crime, like this defendant, suspicions surround her, investigations in regard to her proceed, and inevitably, naturally, if the matter is deemed of consequence, she is brought before the court, the district court in that instance, to have an examination preliminary into the probabilities of the crime on her part. Then if she, having nothing to do with it, having no control of it, having no opportunity to accept, to be heard, be bound and compelled to answer to this court, what then? Then the grand jury of the county is called together and sits by itself under the direction of the district attorney, to investigate and see whether it ought to come before a jury like yourselves. Now remember that at that time, and when this indictment of last December was framed, this defendant had no voice, it was purely one sided. They said, “We make this charge, serious as it is, against the defendant. We will ask her to come to the Bristol county court house and meet that charge, and if we cannot prove it against her in the ordinary way she shall go free: she is not guilty.”
Now, that is one sided up to that point, practically, and so you are to draw no inference whatever, and I know you will not; you will draw no inference whatever as against this defendant until you have heard the evidence in this case, in this court room, at this time. You have nothing to do with what was done in Fall River any more than you have with what is now proceeding in Australia. The finding of Judge Blaisdell of the district court in Fall River, worthy man as he may be, is of no sort of consequence here, and has no sort of influence or obligation over you. We would not be safe if in these great crises our lives hung upon the decision of a single man in a prejudiced and excited community. No, we walk away from Fall River, we come down to the broad seashore, we sniff the breezes of the sea, and here is freedom, here is right, here are you, gentlemen. I say, then, at the outset, as you begin to contemplate this crime and its possible perpetration by the defendant, you must conclude at the outset that such acts as those are morally and physically impossible for this young woman defendant. To foully murder her stepmother, and then go straightway and slay her own father is a wreck of human morals; it is a contradiction of her physical capacity and her character. Now, before I pass, let me say that this defendant complains of no prosecution on the part of the district attorney of this district. He has only one duty, and that is, as a gentleman and lawyer, to conduct this investigation so that the truth as to her may be elicited. With his well-earned reputation and his high standing at the bar he would have no need to search for laurels for his fame, and he is one of the last men that would demean himself so as even to think of it. He stands above the miserable assertions that unthinking people will make, and he walks into this court room only as the representative of the commonwealth of Massachusetts, that is, yours and mine and his, and says: Gentlemen, all I have to show you is the case we have against this woman. And if the case I have brought to me by the Fall River police is not sufficient, or you have any doubt about it, he will say, if he speaks what his heart prompts him to utter, he will say, “For God’s sake, say so, like men, and Bristol county will be the happier and the securer afterward.” He is not here for blood, neither is he helped to such dishonorable work, if it were attempted, by our excellent friend, the district attorney from the great county of Essex, one of our best and most reliable lawyers. So you will see no small play, you will see no mean tactics on the part of the commonwealth here, but only a presentation not overstrained in one jot or one tittle, a presentation of what has been proven here, and only that. So merciful is our provision of the law that a defendant shall have a decent chance that she becomes convinced how faithfully that is carried out when she recalls the numerous kindnesses and considerations on the part of the sheriff of this county. He has done with her, not as a convicted criminal, but as a young woman of his county, entitled to her rights, guaranteed to her in the constitution and laws of our State. And so she comes into this court, presided over by our best of the judiciary, clean, able, honorable gentlemen, who sit vigilantly upon the bench to guard against any possible wrong, who want the commonwealth’s case tried, but the defendant to pass without abuse or wrong, and taking the law into your hands as they will give it to you, you have only to deal with the facts. I said the case was brought to the district attorney by the Fall River police. I have not time to go into sarcasm or denunciation of those gentlemen. They are like a great many bodies of police that you find in all communities. Policemen are human, made out of men, and nothing else, and the blue coat and the brass buttons only cover the kind of a man that is inside. And you do not get the greatest ability in the world inside a policeman’s coat. You may perhaps get what you want, and what is sufficient, but you must only call upon him for such services as he can render. Now, when a police officer undertakes to investigate a crime, he is possessed and saturated with the thoughts and experiences he has with bad people. He is drifting and turning in the way of finding a criminal, magnifying this, minimizing that, throwing himself on this side in order to catch somebody, standing before a community that demands the detection and punishment of the criminal, blamed if he does not get somebody into the lockup before morning. “What are the police doing?” says the newspaper, and the newspapers, you know, are not always right, mostly. Saying to him: “Look here, Mr. Marshal, these murders were committed yesterday and we haven’t a murderer in the lockup. Get somebody in.” Now they are sensitive to all those expressions. Naturally policemen, feeling the responsibility of their office, must go there and do just such work as that, in that way. That can only be expected of them. And when they come upon the witness stand they reveal their weakness, do they not? They knock their own heads together. They make themselves, as a body of men, ridiculous, insisting that a defendant shall know everything that was done on a particular time, shall account for every moment of that time, shall tell it three or four times alike, shall never waver or quiver, shall have tears, or not have tears, shall make no mistakes. But they, stripped of their blue clothes, and in their citizens’ garb, show themselves to be only men here, and liable to human infirmities and errors. Now I dismiss them without any unpleasant reflection. I will talk about them a little later on: but I have nothing to say now, any more than this, that you must not ask of them more than they ought to give, you must not be surprised that they fail even of the standard that they set up for everybody else. So I say to you, as a distinguished advocate in a similar cause expressed himself to the jury: This defendant comes before you perfectly satisfied that the jury is the most refreshing prospect in the eye of accused innocence ever met in human tribunal. Who are you twelve men, and how came you here? Selected out of one hundred and fifty men that were drawn from the body of this county, passing the gauntlet of criticism and objections put upon you by the court or the attorneys, you are sworn here in this cause. Who are you? Men: Bristol county men. Men with hearts and men with heads, with souls, and men with rights. You come here in obedience to the laws that we prescribe for the orderly administration of our courts. You come here because, in answer to the demand, you feel that you must render this great service, unpleasant and trying as it may be, exhaustive as are its labors; you come here because you are loyal men to the State. Nay, more. You are out of families, you come from firesides, you are members of households, you have wives and daughters and sisters and you have had mothers, you recognize the bond that unites and the flash that plays throughout the households. Now bring your hearts and your homes and your intellects here and let us talk to you as men, not as unmeaning things.
The clerk swore you to your duty, and perhaps you did not hear that oath so closely as I did. But I heard him say, “You shall well and truly try and true deliverance make between the commonwealth and the defendant, whom you shall have in charge.” In no case except a capital case is the oath offered in that way—“whom you shall have in charge.” And Lizzie Andrew Borden from the days when we opened this trial until this hour, has been in your charge, gentlemen. That is the oath you took. And not alone with you, Mr. Foreman, or any one of you, but with each and all of you. You have her in charge. Now has come the time when not alone her lawyers are to speak for her, not alone the judges are to watch for protection, not alone is the learned attorney of the commonwealth to ask no more than he ought to have, but the twelve men who sit here to try this question take the woman in this charge, and the commonwealth says, “We intrust her to you.” Now that is your duty. She is not a horse, she is not a house, she is not a parcel of land, she is not the property of anybody, but she is a free, intelligent, thinking, innocent woman, in your charge. I noticed one day as we were proceeding with this trial, a little scene that struck me forcibly. It was one morning as the court was about to open, when you were coming into your seats and standing there and the judges were passing to the bench to take their positions and the defendant was asked to pass around from the place where she now sits in order that she might come in so as to be near her counsel, and right at that moment of transition she stood here waiting between the court and the jury; and waited in her quietness and calmness until it was time for her properly to come forward. It flashed through my mind in a minute; there she stands protected, watched over, kept in charge by the judges of this court and by the jury who have her in charge.
If the little sparrow does not fall unnoticed to the ground, indeed, in God’s great providence this woman has not been alone in this court room, but ever shielded by his providence from above and by the sympathy and watchful care of those who have her to look after. You are trying a capital case, a case that involves a human life, a verdict in which against her calls for the imposition of but one penalty, and that is that she shall walk to her death. You are then to say, “I will critically consider this question, and I will make no mistake, because if I do, no power on earth or in heaven can right the wrong.” You come here without prejudice or bias, I take it. You said you did. I believed you. I believe you now. You said that though you might have read about this transaction, you might have formed an opinion, might have expressed an opinion, as I think some of you with perfect honesty said, because in this intelligent age people do think and read and talk, and it is all right they should, but when a man is big enough to walk up and say in answer to the questions the chief justice put to him, “I have read and thought and judged about it, and I stand up here now, and before my God and my people, say I will find a true verdict on the evidence under the law.” That is a man we all want to see in the jury box. I would rather see him there than to have one of these miserable pieces of putty on whom the last man who stuck his finger into him can make an impression. You will need at the outset, gentlemen, to dismiss from your minds entirely everything that the press ever said about the case, anything that your neighbors have ever said about it, anything that you have ever heard about it except in this court room at this time. Every rumor, every idle tale or every true tale that has been told you must banish from your minds absolutely and forever. Why, gentlemen, if we were to try the case on the street we need not have spent these days and you would have been enjoying your entire freedom like the rest of us, you would not have been prisoners yourselves. But we are not trying the case in this way. And so certainly, I believe, does the court guard it, that you are shut off from reading the newspapers, from having communications, from indulging in conversation about the case during the progress of the trial. What use in taking these precautions if you are all coming in with your heads brim full of what you have heard before and will not give that up? Now every man of you is man enough to say, when you go to the jury room to deliberate on this thing, and somebody presents an idea. “Well, that is not in this case. You have no right to consider any such thing. You have no more right to do it than you have to take a knife and cut this woman’s throat”—I mean under your duties as prescribed by the law. Then you come here patiently day after day, and you will sit here again and again until this case is concluded, and then proceed with your deliberation with that calmness and fidelity that is guaranteed in the expression of your countenance.
When the life of man is in debate
No time can be too long, no care too great.
Hear all, weigh all with caution. Now, gentlemen, it is not your business to unravel the mystery. You are not here to find out the solution of that problem. You are not here to find out the murderer. You are not here to pursue anything else. You are simply and solely here to say, is this woman defendant guilty? That is all, and though the real criminal shall never be found, better a million times that than you find a verdict against this woman upon insufficient evidence and against your human experience and contrary to the law, so that an unhealthy appetite may be satisfied, and blood be given that belongs to the owner of it beyond anybody’s taking. Not who is it? Not how could it have been done? Did she do it? That is all. Reflect if you have not yet been able to bring that evidence with a certainty and a reasonable construction to a conclusion, so that you, as decent gentlemen, can go to your homes and sit down and say, “We have done our whole duty. We have brought in a verdict against her,” although perhaps, within a week we wish we had not, when we think of it. Nor must you think for a moment that this defendant is set to the business of finding out who did it. If she cannot find out and tell you who perpetrated these acts, somebody says, “Go hang her.” She is not a detective, and the commonwealth has put her in a place for the last ten months so she could not be very vigilant or active if she had all the ability in the world. She has been in jail in this county; she has been under control of the police from the very time, from Thursday, August 4, as you know from all these facts, and do not expect her to do things that are impossible. Pray, do not load upon her the responsibility of setting her to go when she cannot go, or do what she cannot do, or else hold her to account for it with the severest penalty known in the law. The commonwealth does not want any victim, either. In the old days they had sacrifices of lambs and goats, and even human beings were offered in expiation and in sacrifice. But we have got over all that. We do not even burn witches now in Massachusetts. The commonwealth wants no victim, and so, gentlemen, I have attempted in this way to array before you what I consider, in my own manner, the duties that lie upon you and the limitations under which you act. And what is the call upon you? Why, simply to be true to yourselves. “To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man.” Now there always goes with any person the presumption of innocence of crime. I stand here at this moment addressing you, and I am clad all over with that presumption of innocence of every crime; so is each one of you. That is your bulwark; that is born with you, nay, rather is given to you out of the great consent of all the people, and you say “guilty?” Why I think not. I am innocent, and the court will tell you that that presumption started with this prisoner on August 4, and has been with her by night and by day. When you had her in charge that presumption of innocence has been in her favor and it never leaves her until by the verdict of a jury that presumption is overcome and she is declared guilty.
It is true that people who have heretofore been innocent commit crime, and so the law says, “We will not demand the unreasonable and impossible thing, but you, the defendant, shall have that presumption go with you until it is entirely overturned and it says that you are of a criminal heart and criminal act.” Now, bear that in mind, if it comes to any question in the discussion of the evidence of a doubtful consideration, then that presumption is all the time in the scale. The beam of the scale does not stand level to start with. We say the scales of justice hang even, but there is always with the defendant the presumption of innocence that tips the scale in her favor, and the commonwealth must begin and load in on the other side facts until they shall overcome the presumption—nay, more, and overbalance the facts that the defendant shall produce.
I shall not attempt to talk to you at length about the different kinds of evidence, direct evidence and circumstantial evidence. The learned court will explain those different features to you, and the lines have been drawn so clearly in the many cases that have been tried that it is wholly unnecessary for me to take your time and your patience. You know, or will know, when his honor has uttered to you the charge in the best way what we mean by direct evidence, and what we mean by circumstantial evidence. Direct evidence, testimony from actual observation and actual knowledge, is what we very frequently rely upon. But that is not always certain. I am bound to say to you, not always sure, because the man who gives the direct evidence may be a miserable liar and you would not believe him under oath unless you kept your hand on him. Now, that is direct evidence and then sometimes facts are found out by circumstances. You reason from hearing a noise or from seeing a person in a given place. You see a man going somewhere and you say he has gone in there for that particular business there, whether it is banking or insurance or grocery. Well, you may be right or you may be wrong. You have been given different circumstances to try to draw out a reasonable conclusion, but I am not going to enlarge upon that because I deem it unnecessary and because I have other things in my mind which are more important. You do not start in here to try to convict anybody—other people may, but you do not. If you are asked to convict upon any evidence, whether that is direct or circumstantial, you will, of course, bring it your clearest perception and strict honesty, and look to see whether it fits in, whether it is all right, and whether it has not run against this corner and also knocked itself to pieces, whether the circumstances are all in and whether something has not been left out, whether the chain is not broken with which it is sought to bind the defendant. Look it over, search it through and through, as I will in the argument as I proceed, and discover whether there is any claim that is insufficiently proved. Then, too, the court will tell you that by whichever method you proceed as to this defendant, the proof must come up in your mind as a moral certainty—not a mathematical certainty, but a moral certainty. It must be beyond a reasonable doubt.
Now, you saw in criminal cases before—very likely you have had a man before you on trial who had stolen five dollars or something of that kind, and the same rule applies. And you are told that you must not convict him unless you are satisfied beyond a reasonable doubt. It is not different in this case. In the one case you are perhaps dealing with a man who will be subjected to a penalty of a fine, or a brief imprisonment at the most. Here the same rule applies, and you are dealing with a woman, whose life is at stake, and nothing else. Now, you will see that while the rule of law is the same in the one case as in the other, the magnitude of a mistake about it is not to be lightly considered. So that when you are asked to find these essential facts beyond a reasonable doubt of a curmudgeon who sits off in a corner and says, “I won’t talk with anybody; I am an ugly fellow: I will make myself disagreeable in this jury room,” that is not it. That is not a reasonable doubt, no matter which side he is on. He is not fit for service in the jury room. It is the doubt of such men as I take you to be, with your home influences, with your church belongings, with your business associations, with your social relations, with all that binds you up to each of us.
It is the reasonable doubt of a reasonable man, confronted with the greatest crisis he has ever met in the world. Yes, the greatest crisis; because, though I doubt not some of you have worn the blue and faced the cannon shot, though you may have heard and felt the thunders of war, and you may have seen blood flow in streams, yet that is one thing; this—to sit here and to have in charge this young woman and to say upon your oaths you are satisfied that she is guilty or not guilty, is a duty to which very likely none of you have ever been called, and which probably you will never be asked to perform again. You will go to your graves thinking of how you performed this task, and it ought not to be that you can have any compunctions that you made a mistake which nobody could retrieve. Then again, under the laws of this State, the defendant in a criminal case is permitted to testify upon the stand as she desires to, but if she does not desire to she can refrain from testifying, and then the statute says, specifically and directly, no inference shall be drawn against her from the fact that she has not testified. And so the learned district attorney in his closing argument will not by the slightest suggestion or insinuation insult this court and jury by intimating that the defendant ought to have testified. That law was born under two considerations. Formerly the defendant could not testify. Later it seemed to be wise to give a defendant an opportunity to testify, but it says at once, although he does not come to the stand, you shall not take that against him in any way. And again, too, as if in the charity of human nature our law givers felt that it was too great a strain oftentimes to put upon a defendant to place him in such a position that he must either go upon the stand or have that argument laid against him, that he ought to have done it, the law which I have cited to you—not in its exact term, but in its essential features and expressions—was framed in the way I have stated. And I dismiss that again. The court will tell you in emphatic and clear language, and it will look you in the eye, and touching your sense of justice, say to you: Gentlemen, you must not consider that, and you will not as you go to yonder room under your oath depart from that, because if you do so what is the use in having scales for justice to hold or courts for the apparent administration of it either. Now I said you must leave out rumors, reports, statements which you have heard before the trial commenced. That is true. I repeat it; but more, you must leave out of your minds absolutely every single thing that the learned gentleman who opened this case, Mr. Moody, said that he was going to prove, unless he has actually proven it. Now I would not like to say that about him in private affairs. I would not be pleased to intimate to you that he would say anything that he was not going to do, because he is the soul of honor. But he speaks for the commonwealth, that is all, and the commonwealth tells him: “You must not say anything but what you are going to do and you must tell them that and that only.” And I shall expect the learned district attorney to withdraw the things that brother Moody said he was going to prove, because he has not proved them. The court room ought not to echo still with the utterances of the gentleman who opened this case, because they tend to create a prejudice against the defendant. Now let us tell you about that so that you will understand it. Mr. Moody said that the government was going to claim and prove that this defendant was preparing a dangerous weapon on August 3, the day before the murder. You heard him say that. I did. He said it. They have not proved it, have they? Was there a thing about it in the evidence? You have heard some discussion that we have had at the bar because, in order that there should be no prejudice, you have been asked to stop. Many of those things which have been offered in good faith have not been proved, because the court has said that they are not proper to be proved in this case. They have nothing to do with it. They will only mislead the jury, and the jury shall not hear them in this case. Whenever another case arises, if these things are pertinent and proper they shall be heard, but not now. No, the commonwealth came with the idea of putting these things before you, I say, with good intention, but the court says, “No, though your intention is good, it is not proper, and we will not complicate this thing. It will create a bias against the prisoner which may divert the course of justice, and that shall not be introduced here: it has no right here though you mean to be right.” Now, there is no proof at all, gentlemen, about any dangerous weapon having been prepared upon the 3d of August. And to make it more specific, Mr. Moody said in his opening that they would prove that this young woman went out to buy a poison on August 3. You have not heard any such evidence. It is not proved: the court did not allow it to be proved, and it is not in the case. Now you will not go to the jury room with the thought that if it had been allowed you would have considered that it was proven. But it is not allowed: no such evidence came before you, and I shall expect the district attorney, man fashion, to get up and say so, and I think you will, and I shall be disappointed in him if he does not. He will tell you that upon that subject, and that the case is not touched at all. Then he said that they were going to show you that the defendant had contradicted herself under oath about these occurrences. Well, there is another question which went to the court, and the court said: “That is not proper in this case. You cannot show that.” And so there is nothing of the kind. Now, are you not going to sit back there and say, “Well, I rather think Mr. Knowlton and Mr. Moody would not have offered it unless there is something behind it.” That is not the way to try cases. That is not the way you hold this defendant in charge. You might just as well have got your verdict before you started, and said, “Guilty, because she is here.” You might as well say, “We don’t want to hear any evidence.” You do not want to say that you do not care whether you hang her right or wrong,—“give us somebody.” Now, the court sits here to guard you and all of us against any such mistake. That will not do. The court says: “Here, gentlemen, decide this case on the evidence given right here from the witness stand and on nothing else.” When you stand there in the box ready to answer, and somebody says to you, “O, don’t mind what they put in about particular evidence, whether competent or incompetent,” you say, “No, I want my rights. I am here under the protection of the law, and I call upon these twelve men, decent men, under their oaths, to stand by me and see that I am not wronged.” So you will leave those things out, gentlemen. No prussic acid, no preparation of a weapon by this woman, no statement made by her under oath in this trial, or anywhere that you know anything about or have a right to consider—I do not care what you have read. Now, we shall agree in the consideration of this case very largely upon many things. My position in this case, in speaking for the defendant, is not to misrepresent or distort facts, but to take the proofs as they are, put them against each other and find out what is right. This defendant wants nothing but justice, and she desires to have it in the proper administration of the law. Things that are not in dispute I hope I shall not contest. I hope I shall array before you the facts altogether in an intelligent and clear way, and then ask you to give me your judgment on them by and by, and I just as sincerely trust that I will not, even by a single letter, step over the line of the proof or deal unjustly, even with the commonwealth that is really so dear to us all. Now, let us see if we cannot get at these things in a fair way without prejudice.
Mr. Andrew J. Borden left his house and went down street that morning, Thursday, August 4, about 9:30 o’clock, so that he arrived at the Savings Bank, upon the evidence, about 9:30. He went into several places along the street, not material now to consider, walked back along South Main street toward his house, stopped at a store of his that was being repaired, talked with Shortsleeves and Mr. Mather, and after picking up an old block, which he wrapped up in paper and took home, he started to go to his house. You recollect something was said that it is not material to consider in this connection, but he walked along up toward his house, arriving there, the defendant thinks, about 10:45. It did not vary, probably, more than two, or possibly three minutes from that time. It must have been as much as that because you recollect how Mr. Mather put it, his looking at the clock and the time that Mr. Borden lingered at the store, went upstairs, came down, went out into the middle of the street, went back and talked with Mather and Shortsleeves a minute or two and then went on. It was 10:40, twenty minutes of 11, as he came up to the store. Now he probably consumed two or three or four minutes in doing those things that they have spoken of, and so you may well, perhaps, infer that he reached his house about 10:45. We have learned of several things that he did, that he came into the house, sat down, went upstairs to his room, laid down his little package, and so on, was occupied with a few things that would consume a short space of time, so that we can say that he was murdered somewhere within a given fifteen or twenty minutes of time which may be between five minutes of 11 and ten minutes past 11. I presume that the commonwealth will not differ with me about this. At any rate, if there is a clearer statement of it to be made, the defendant has no objection if it lies within the proofs. That is the way I propose to argue, to take that as a fact. Mrs. Borden had died earlier. On the testimony of the physicians, inspecting the character of the wounds, the condition of the blood, the state of the stomachs and the intestines, they put it from an hour to an hour and a half earlier than he died. That is probably correct. At any rate, no issue is made about it; and so, if I may be permitted to state it, she would seem to have died between 9:45 o’clock and 10:15, somewhere within that half hour, taking all the evidence into account. That answers the demands of the physicians, and seems to me, if I may be permitted to say it, to accord to the facts. Now you have those tragedies within that short space of time in that place, and it is for us to see whether the defendant is connected with them: whether the defendant alone or the defendant with any confederate, if there is any proof about it, did the deed. I am at a loss to know where there is any evidence about any accomplice or anybody else connected with it at all, and so it is only my inquiry to find out if there is any truth as to this defendant. Of course, I need only suggest to you that until there is some sort of evidence that connects somebody with it, it is not well to assume that she must have had somebody, because you cannot think of anything else. That is not the way to try this case. Now it will be my endeavor in discussion of these questions to be very guarded about giving my opinion of the evidence. I have no right to put in whatever personal weight I may have in my construction of the evidence. That is bad practice, and I should expect, if I get over the line, for the learned court to call me to order, because I trust I know my place.
I have no right to tell you that I believe so and so about this case. I may believe all I want to, but my duty is to keep it inside of me, that is all. And so the district attorney will do the same: carrying his great weight and the strength of his convictions every way into this case, he is not so to demean himself as to tell you that he believes so and so. You do not want our beliefs, we want yours and your judgment. Now there sits the defendant. In yonder city were the crimes. Those crimes were the foulest and the darkest kind. She comes here under this presumption of innocence. It must be overcome absolutely and you must bind her up to the acts before you can say she is guilty. What is the cord that holds her to those terrible criminal acts? Let us see where it is to be found. It is not in the charge that is read in the indictment; it is not in the procedure of the court, but it must be in that chain of circumstances or in that line of direct proof that shall show you that she is tied up to this thing, that she is the one, and that it is not reasonable that anybody else did it or could have done it; that there is no reasonable way of accounting for the things that are proved except that she did it. That is the kind of bond that you must frame in order to hold her or to permit you even to think of holding her.
If a person commits a murder like this and we know it, we have no occasion to inquire for what reason he did it. If he did it then it does not make any difference whether he had any motive or not. He might have done it for pure deviltry, without a motive. He may have done it in insanity, and then the law comes in, in another way, to intervene in his behalf. But if it is proved—proved, I say, not guessed, but proved—that he did it, it is not of the slightest importance whether he had a motive or not. If he did it, that is all there is about it. Now, why is the commonwealth bound in this case to attempt to show a motive for doing? merely this, gentlemen, because they say here are the crimes—there are the crimes, there sits the defendant, you see her over there? Now, in order to hold her responsible for the crimes we have got to bind her up to the crimes. We have no direct evidence that puts her there, we have some circumstances that look as if she might get there: and so in order to bring her to it, we must show a reason why she would do it. What moved her to do it, that is the motive, that is to say the motive in this case, is only to explain the evidence. You get my idea I think. It is only to tell you how you can explain her acts or her words. If you can explain them in a reasonable and honorable way she is entitled to that. But if they cannot explain except that you find a criminal thought running through them, then that motive operates against her. Not to make her commit the crime, but to show you that what is said about it is a reasonable construction, that she was led to do it. That is it, if I understand the case properly, and I state it just as I believe it to be—the court will correct me if I am wrong—and I believe I state it about as the commonwealth attorneys would state it, intentionally I do; and so that motive is only to be inquired into to help out about the circumstances, and I think I can explain it to you—and I am guarding myself against saying anything I ought not to. Suppose the crime were committed in another place, and a man was suspected of it, and he proved that he were in the state of Georgia at the time, at the very instant, and everybody knew it. Well, now, you could not bind him for doing the crime anyway, no matter if he stood down there and swore profanely that if he could only get home he would have killed that man. That would not be anything, because the circumstances do not come up to it, they are not connected. So you do not want his motive to explain his acts. He hasn’t any acts to explain. Now, the government says that Miss Lizzie Borden has some acts to explain, therefore they will find out whether there is anything in her motives that will put a color on it. I think you see that, and they are inseparable from the conditions. Now, I say that the argument will be only this, that you are to look at the motive to see what effect you shall give to the evidence. It will not do to say that no adequate motive is shown and none is necessary. That is true when the crime is proved. That is true when you have the facts. But that is not true when you are trying to show the motive in order to explain the facts. Now there is absolutely (and I think the commonwealth will say it) no direct evidence against Miss Borden, the defendant. You know what I mean. Nobody saw or heard anything or experienced anything that connects her with the tragedies. No weapon whatever, and no knowledge of the use of one, as to her, has been shown. You know if you had found her with some weapon of that kind in her control, or in her room, or with her belongings, that would be direct evidence. But there is nothing of that kind. It is not claimed. It is not shown that she ever used an implement of the character that must have produced these murders. It is not shown that she ever touched one, or knew of one, or bought one, or had one. In fact, the evidence is that she did not know where the ordinary things in the house of that kind were.
And the murders did not tell any tales on her either. There was no blood on her, and blood speaks out, although it is voiceless; it speaks out against the criminal. Not a spot on her from her hair to her feet, on her dress or person anywhere. Think of it. Think of it for an instant. Yes, there was one drop of blood on the white skirt as big as the head of the smallest pin, says Prof. Wood. Less than a sixteenth of an inch in diameter; and that is every particle of blood that was found upon her clothing. And that was not where you could expect it to be; not in the front of the skirt that must, if she had it on and had done these foul deeds, have first come in contact, but around back down toward the bottom near the placket, as I believe the women call it, out of the way. I do not know but the government are going to say that she turned her skirt round hind side before, before she began, in order to get at it in a practical way. I don’t know what they are going to say yet. I shall have occasion to speak of that by and by. But Prof. Wood does not claim now—I don’t know as there is a Fall River policeman, from the top down, that claims now—that that little fly speck, as it were, of blood tells any tale here. I forbear to allude to what is proved in this case—Miss Borden’s illness, monthly illness, at that time—and to tell you or remind you that Prof. Wood said he would not undertake to say that that blood was not the menstrual blood. You know the facts. I need not give them in detail. You know enough in your own households; you know all about it. You are men and human. You have your feelings about it. I am not going to drag them up, but you must not lose sight of these things. Then there was some talk about a roll of burned paper in the stove, where Mr. Philip Harrington, I believe, was the officer. He took off the cover and saw what he said looked like the embers of a rolled up piece of paper, burned, that is all. And there was some sort of dark insinuations here floating around that didn’t clothe themselves in words, but there was something in the manner that meanly intimated that Dr. Bowen was doing something about it—Dr. Bowen—I suppose they don’t make any allegation that he committed these murders, or helped to cover up, or assisted in doing anything about it. When the evidence is heard, it seems that Mr. Philip Harrington says that Dr. Bowen was throwing in some pieces of an old letter that had nothing to do with these transactions, something about his own family matters of no account. And Mr. Harrington, I think I am right in the name of the officer, when they were thrown in, saw some little piece of paper, rolled up paper, about an inch in diameter, that had been rolled up and was lying there, the embers of it, and there was a small, low fire. Well, we thought the handle was in there. We thought that was the plan that the government possessed itself with the idea that that handle was rolled up by the defendant in a piece of paper and put down in there to burn; and it had all burned up except the envelope of paper. Did you ever see such a funny fire in the world? What a funny fire that was. A hard stick inside a newspaper and the hardwood stick would go out beyond recall, and the newspaper that lives forever would stay there. What a funny idea; what a theory that is. And we wrestled with that proposition here, on the part of the defense, through weary nights, troubled about it, until Fleet and Mullaly got here together, and then we were relieved from every doubt. For the handle is in it, and it is out of it. Fleet did not see it; Mullaly did see it. Fleet did not take it out of the box, and Mullaly saw him do it. And it is in the box now, and they run over to Fall River to get it, or they wanted to, and can’t get into our house, and explain about it. So we rather think that the handle is still flying in the air, a poor orphan handle without a hatchet, flying around somewhere. For heaven’s sake get the one hundred and twenty-five policemen of Fall River and chase it till they can drive it in somewhere and hitch it up to its family belongings. Then, too, upon the best testimony of the experts, and probably in your own common sense, whoever committed that murder of Mrs. Borden stood astride her body. She was a large, stout, fleshy woman, weighing two hundred pounds. Conceive of the situation. You looked at the place. You saw the little gap between the bureau and the bed, stated to be about thirty to thirty-four inches, and you are to conceive of the murderer standing over the body in this way. Here she lies, there, and the murderer standing over her and literally chopping her head to pieces. I shall have more to say about that by and by, but I call it to your attention. And they all agreed that Mr. Borden was butchered by somebody who stood at the head of the sofa and between that and the parlor door. You know how it is placed and we make no question about it. That looks reasonable, we will say, and so we take the things as they are. Now, what reason is there for saying that this defendant is guilty? The commonwealth asks you to come up here and hear all this evidence and point out whether you think she is guilty or not. If you do not think she is, why, you say, “Not guilty;” and the commonwealth is satisfied, and the district attorney goes away, having done his whole duty, satisfied to let it alone. He does not find any fault about it, he is relieved of it. It is a great relief to him to get rid of the case. He does not enjoy it. He says, come up and hear all we have got against her and let the jury say she is not guilty and that will stop this matter, or if you come up and hear it and you say she is guilty, then that relieves me about it. I put this responsibility on you. And the court says, “I put this woman into your charge.” Now you have got it all. Now what right have they to say anything about it? Well, I want to run it through, which I have done with some care, and tell you why they claim that she did it.
In the first place, they say she was in the house in the forenoon. Well, that may look to you like a very wrong place for her to be in. But it is her home. I suspect you have kind of an impression that it would be a little better for her than it would be out traveling the streets. I don’t know where I would want my daughter to be, at home ordinarily, or where it would speak more for her honor and care, and reflect somewhat of credit upon me and her mother (who is my wife, I want to say), than to say that she was at home, attending to the ordinary vocations of life, as a dutiful member of the household, as belonging there. So I don’t think there is any criminal look about that. She was at home. She is shown to have been upstairs to her room, the government says, about ten minutes before ten, and she must have seen, as they claim, the dead body of Mrs. Borden, as she, the defendant, went up and down the stairs. Now, let us look at that, because that is an important feature in the case, important for the commonwealth, important for the defendant. You went there and saw the situation. You know how the stairs go up, turning around as you go up, and at the top of the landing you are right there at Miss Lizzie’s door. When you stand at the top of the landing you cannot see into the guest chamber, you know. It is as if you stood over there where the officer stands, or a little further. You are not looking into the door at all. It is not like a good many houses where you come up at the top and are looking in at both doors at the same time. Then it is said that at a certain point on the staircase, right on one tread of one stair, if you look in under the bed across the floor of the guest chamber you could see any object that was over between the bed and bureau. And you were all asked to do that by traveling up and traveling down—you remember the experience you had—and looking. And therefore they say that, although Miss Lizzie, when she was at her door as she undertook to pass down, could not see Mrs. Borden over there behind the bed, that if she went downstairs she could have seen Mrs. Borden lying there behind the bed, and, therefore, that she must have seen her. Now if we had marched up and down the stairs and told you nothing of what we wanted you to look at, there is not one of you that would have squinted under that bed on that particular tread of the stairs. You would not have thought of it. But you were going to see if you could see, and you were told to look all you could, and see if you could see. So you got ready to see, and made up your minds that you were going to see if there was anything to see. You have not been home for the last two weeks. But when you get home, and after you get over this in two or three weeks from now, and I meet you, I want you to tell me where you looked when you came down stairs that morning, and whether you looked to see what you could see at any particular stair. How was it the last day you were at home? Do you remember anything about it? What time in the morning did you come down? At what stair did you look to see what you could see? Right in your own house where nothing had happened. Now we are talking of a time with regard to Miss Lizzie when nothing had happened, when everything was all right. It was so at that time as to her. Now people do not go searching and squinting and playing the detective and all that to begin with. I do not. If I did I should think I was a rascal some way or other, and that something was happening to me. If she did that thing, if she was looking to see if anybody could see it, if she walked down and looked under and not said anything about it—there goes the murderess, see her; she didn’t see it, and she might. Therefore she is the criminal. She did see it because she could, and, therefore, she is the criminal. No, no. You and I, until we get to be too old, run up and down stairs just as we have a mind to. They are our stairs. We do not ask anybody’s pardon or qualify our act a particle. Then there is not the slightest evidence that that door was open at that time. Remember that there is evidence that it was open later but no evidence that it was open before Mr. Borden came in. I am right about that, and that is very important. So that if, when Miss Lizzie was down stairs and went upstairs, as she undoubtedly did during that forenoon, to her room, if she went up and down stairs and the door was closed or nearly closed or stood ajar, then, of course, she could not see. She had no occasion to go into that spare room. Wouldn’t go in there. As you know about the habits of the family in which she lived, the spare room was closed up practically. Mrs. Borden had gone there to make the beds, and after she had left it all right, undoubtedly she would push to the door. The door was pushed to, at any rate. There is no evidence that it was wide open. Now the government starts out with the idea that the door was standing wide open, and, therefore, that she could see: and I have told you how you can reason it very plainly out in your own common experience you wouldn’t look. If she had been lying right in front of the bed, outside, why I should have said it would be very improbable that a passer up and down the stairs would not have seen her, and yet that is not impossible. You walk along the streets sometimes, possibly—I do not want to say anything wrong about you—and you meet your own wife and don’t see her, go right along. They used to tell a story about Prof. Peirce over at Cambridge who didn’t know his own wife when he met her, and he had been spoken to about it so much that finally he thought to make amends, he would speak to the first thing he met, and that was a cow. He said “Good morning.” He didn’t make any more mistakes. People are not looking for everything at every minute, especially if they are innocent. It is the guilty man that is always looking around to see when there is somebody round going to catch him, lay hand on him. Now do not ask her to do things that nobody else does. Besides, you remember the testimony from Dr. Bowen and Mr. Manning and some others—it is not necessary to state them—that the upper hall was dark when they went up there, and that the guest chamber was dark. You remember that in that guest chamber there are these tight board shutters that shut up. And you know the New England housewife does not like to have her carpet fade, and the more they live in the old style the more careful they are.
I remember with some reflections about my old mother, how she looked after the carpet and the boys, and they did not get the light in. The boys wanted to live out in the sunlight, and she did not want her carpets there. And so the natural thing in that room in the Borden house was to keep the shutters shut, those tight shutters. And the doctors say, they all of them say, that when they went in it was dark and they had to open them so they could see something. Now you recollect that we tried that on you over there. You marched up and down in the first place, with the shutters all flung open, so that that room was as light as this, or more so. Then we shut the shutters and asked you to go up. You know the instance. You can see across the street, but it is always difficult to look down into a well and see what is at the bottom. Now, they say further, as a reason, that she is guilty, or they claim it, that Mr. Fleet tells you that Lizzie said she saw Mrs. Borden about 9 o’clock, when she, meaning Mrs. Borden, was making the bed. Now, taking that as true, there is no contradiction of it, I am bound to say, however, in fairness to the defendant, that it is possible that Mr. Fleet was mistaken. But it is of no great account, as the defense looks at this case. Admit that, then, for the time being, for this discussion, to be true, I do not say it is, but just assume it. See what it comes to, then: that is, Miss Lizzie said to Mr. Fleet—assume that it is a fact—that as she went down stairs or went upstairs she saw Mrs. Borden making the bed in the spare room. Well, what of it? what of it? True, you say. Your daughter goes upstairs this morning to her room and she sees her mother in the spare room making the bed. Well, what of it? Well, they say she was upstairs when Mrs. Borden was making the bed. That is true. But she was upstairs in her own house, in her own room, at a time when the orderly woman of a house goes to look after the morning work. It does not appear one way or the other whether they were in conversation or not, and it does not appear whether she went up and down stairs that morning two or three or more times or not. Why, you would naturally infer, I should say, that it would be the commonest thing in the world for this young woman to pass up and down stairs to her room in the ordinary way of living? Why not? Do you suppose that your wives and daughters can tell the number of times they went up and down stairs six months ago on a given day? Not at all, or even the day before, unless they were very careful about something. Now, there is no doubt at all in my mind that she did go up and down stairs. Mrs. Borden was making the bed. That was before she had been killed, of course. And while she was there, pursuing that work, nothing whatever except the passing up and down is what is claimed here. Now, grant it all. Grant that she did go up and down stairs that morning about 9 o’clock. Mrs. Borden was alive. It is not claimed that she killed them at that time. But the commonwealth undertakes to tell you without any evidence, gentlemen, without any evidence that she stayed up there that forenoon, practically, until her father came in. I say there is no evidence of it, and I will show you that later. That she went up and down I do not care to question. I should expect it. That she stayed up, no; or that she was there, having stayed all the time until her father came, no. Now, she told about the note, they say, and that is evidence of guilt. She told about Mrs. Borden having a note. Now, there is considerable interest in that question, and I ask your attention to it. You know that after the tragedies, when Miss Lizzie was asked about where Mrs. Borden was, she told Bridget, so Bridget tells us, that Mrs. Borden had a note and had gone out. I said: “Who is sick?” “I don’t know; she had a note this morning; it must be in town.” Now, that is what Bridget said to Mrs. Churchill and she says: “I said,” meaning herself, “I said, ‘where is your mother?’ She said, ‘I don’t know: she’s just had a note to see some one who is sick.’” Next question: listen to it. “What did Bridget tell about Mrs. Borden having a note?” and, “She said Mrs. Borden had a note to go and see some one that was sick, and she was dusting the sitting room, and she hurried off and said she didn’t tell me where she was going: she generally does.” Now, that is what Bridget told Mrs. Churchill. You get the idea. Both Bridget and Lizzie had learned from Mrs. Borden that she had had a note. Mrs. Borden had told Lizzie. Mrs. Borden had told Bridget. She had given Bridget the work to do, washing the windows. She says to her: “I have got a note to go out and see some one that was sick.” That was when she was dusting in the sitting room. That is when Bridget says it was to Mrs. Churchill: that was at the first, when there was no mistake about it. And Bridget says: “She didn’t tell me. She hurried off.” No, Lizzie didn’t say anything about her hurrying off; nobody says that. Bridget told it to Mrs. Churchill. She hurried off, and “She, Mrs. Borden, didn’t tell me, Bridget, where she was going; she generally does.” Now have you the slightest doubt about that Mrs. Churchill you saw? She was called upon three times to tell that and she told it very clearly and I think convincingly. Now notice the questioning that follows: “That was what Bridget told you?” “Yes, sir.” “That was not what Lizzie told you?” “No, sir.” “Bridget said Mrs. Borden had a note?” “Yes.” “And she hurried off?” “Yes, sir.” “She was dusting the sitting room?” “Yes, sir.” “And Bridget says, ‘she didn’t tell me where she was going; she generally does,’ Bridget says.” “Bridget said that?” “Yes, sir.” “That was not what Lizzie said?” “No, sir.” “Now, you have got that right, haven’t you; no doubt about that?” “Bridget said that Mrs. Borden had a note to go and see some one who was sick. ‘She was dusting in the sitting room; she hurried off. She didn’t tell me where she was going: she generally does.’” Now, my friend who opened this case for the commonwealth said that Lizzie told a lie about that note. He used that word. I submit that that will hardly stand upon his evidence. If he had heard the evidence fully through he would not have uttered that expression, because here you have proved that Bridget gave the clearest and fullest statement about this matter, and you will probably infer from this that Lizzie learned from Bridget that Mrs. Borden had gone out, and she had a note to go because Bridget tells it with exact detail and holds it down herself. That is not criminal on the part of Bridget at all. I am only calling your attention to the directness of the testimony at the time, right on the very moment. Now, there is not anything in the testimony that really qualifies that at all. Miss Russell says that she heard the talk about the note, but she did not know who told it. Now notice that, and Bridget was there, Lizzie there, Mrs. Churchill there, and Miss Russell says she heard the talk about the note, but she does not know who told it, so that you see that you are uncertain there. Then Miss Russell tells about the conversation with Dr. Bowen, and with Lizzie about the note. Listen to it: “Lizzie, do you know anything about the note your mother had?” And she hesitated and said, well, no, she didn’t. Said Dr. Bowen, “I had looked in the waste basket,” and Miss Russell said “have you looked in your pocket?” and I think I said, “Well, then, she must have put it in the fire.” And Lizzie said, “Yes, she must have put it in the fire.” You see that the suggestion of putting it in the fire came from Miss Russell, not from Lizzie. Dr. Bowen had been searching the waste basket. He had looked around to see if he could find the note. He did not succeed, he calls their attention to it in this way I have stated, and they all assent to it and very likely that was true. It was not of any account. The woman had got the note and had tossed it away, very likely threw it in the kitchen stove and burned it, but we do not know anything about it. But they all seemed satisfied right there on the spot.
Then he said that he had searched for it, Dr. Bowen; it is Miss Russell telling it, and at any rate she says what was said about that was said in the presence of Lizzie and “the same person said she must have burned it?” “I think I answered that question.” That is Miss Russell. Well now you get nothing from the officers, merely that Mr. Fleet learned from Miss Lizzie that Mrs. Borden had a note and had gone out. Officer Wilson says the same thing, that she said she had received a note and that she thought she had gone out. That was after the murder, and she said that Mrs. Borden had a note and she thought she had gone out, that is during the forenoon she thought she had gone out. Dr. Dolan says the same thing, so that when you come to consider it you see that the evidence in regard to the note comes from what was told at the very first. If you believe that Mrs. Borden told both Lizzie and Bridget about the note it all looks plain. And why should it not? They were all in the family there together, and she receives a note to go out, and she did have the note, or else they both tell something that Mrs. Borden told that was not true, and we are not going to believe that. Taking the evidence that comes from the living and that drops from the lips of the dead, you must find that Mrs. Borden did have the note and that she told the two women about it and hurried off, as they thought, and did not tell Bridget or either one of them where she was going. It was not of any great account probably. She got a note to go out, and see a woman, and did go out, as far as we learn to the contrary. It was a natural and ordinary thing, and the note was thrown away and tossed into the fire. It was not a bank note to be kept, but a little scrap of paper probably indicating what was wanted. Now, a person may say “Where is the note?” Well, we would be very glad to see it, very glad. They looked after it and they could not find it. The construction of Miss Russell was that she had burned it up. Very likely that was it. They say that nobody has come forward to say that she has sent it. That is true. You will find men now, perhaps living in this county, who do not know that this trial is going on. They do not know anything about it, don’t pay much attention to it, they are about their own business: do not consider it of any consequence. And after a lawsuit, it very often happens in every court room that some one will come forward and say, “Well, if I had really known that that question was in dispute, I could have told you all about it.” Bless his dear heart, why didn’t he come out of the cellar so we could see him? Well, sometimes people don’t want to have anything to do with it. They don’t want to get into the court room, even if a life is in danger—women especially; they have a dread of all sorts of things. The note may have been a part of the scheme in regard to Mrs. Borden. It may have got there through foul means and with a criminal purpose. We don’t know anything about it. But that a note came there on this evidence you cannot question. That Lizzie lied about it is a wrongful aspersion, born out of the ignorance of the facts as they were to be developed in this case, not with a purpose to wrong her but mis-stating the evidence as we all do when we do not know quite what is coming, really anticipating something that is not proven. So I say that it is not true that Lizzie told a lie about it. If she did Bridget did the same. I would not say that for a minute. There is nothing to connect Bridget with this transaction. See how quickly you would suspect anybody because you get them under pressure. Now look at it. Suppose that Bridget were suspected of this crime, and Mrs. Churchill came forward and told that Bridget said these words that I read, how quick some people would be to say, “O, Bridget!” “She did it. She did it because she told a lie about that note.” Do you see it? It is plain, it is a demonstration. Now I dismiss it with the remark that nobody thinks that Bridget Sullivan had anything to do with this crime at all. Lizzie does not think so, because she has said so openly. Now she told about her visit out to the barn they say. She told the officers that she went out to the barn; went out in the yard, some twenty or thirty minutes. Now remember that we get this information in regard to the time from the police officers. The others tell us that she said she went to the yard and the barn. It takes assistant marshal Fleet here to tell us about the thirty minutes. You see him. You see the set of that moustache and the firmness of those lips and the distinction he wrought in the court room telling that story.
And there he was, up in this young woman’s room in the afternoon, attended with some other officers, plying her with all sorts of questions in a pretty direct and peremptory way, saying to her: “You said thirty minutes, and now you say twenty minutes: which way will you have it?” Is that the way for an officer of the law to deal with a woman in her own house? What would you do with a man—I don’t care if he had blue on him—that got into your house and was talking to your wife or daughter in that way? You would do just what Marshal Hilliard did with Caldwell, get him out. That is the way to do. Recollect that this was after the tragedies, this was when the terrible pall was over that house and the neighborhood, and an officer should be pretty careful. Recollect that the air was full of policemen at that time; they were running all over that house, putting her to every possible strain, asking her in her loneliness, her absence from any friend, her sister gone—following her up in this way, insinuating in that way and talking to her as if she were a liar. Well I can tell the truth and behave pretty well, if a man treats me decently, but I want to get him out if he talks to me as a liar to begin with. Now she told about her visit to the barn, and they undertake to tell you that she did not go out to the barn. Now let us see about it. They say that it’s another lie. We have got so we know what the small words in the English language mean in the idea of the commonwealth. We can get rid of three letters pretty quick, but you cannot dispose of the facts. Now, let’s see about that. Did she go to the yard or the barn? She told them she did, and they bring it in here, and they say she could not have gone to the yard or the barn. Now let us see whether she did or not. If she did not go out to the yard or the barn then she was there upon her own showing at the time when the murder of her father was committed. You see that. That will end the case if you see it. Now, Bridget Sullivan said: “I went right over to Dr. Bowen’s and when I came back I asked her, ‘Miss Lizzie, where was you?’ I says ‘Didn’t I leave the screen door hooked?’ She says, ‘I was out in the back yard and heard a groan and came in and the screen door was open.’”
I am going to talk about going to the barn, and by and by talk about the groan—take them separately. Now, she says that she went into the yard. You understand? What did they have in the yard? Pear trees. That is the evidence, and the evidence that in the partially digested contents of the stomachs pear skins were found. Bridget says Mr. Borden had been out and had brought in a basket of pears and they had these in abundance. You saw the trees; the neighbors saw the trees; Patrick McGowan saw them and got in one of them and helped himself. We know that there is no lie about it. This was an August morning, and it appeared that before this time Lizzie had been ironing, had been around the kitchen trying to iron some handkerchiefs. No doubt about that. She had been in and out about her work. She tells us she has been out in the yard. That was true, we will say, upon that statement. Now, Dr. Bowen said, “where have you been?” Her reply was, “in the barn, looking for some irons,” or “iron.” Both can be reasonably true, can’t they? She could not get into the barn unless she went into the yard, naturally, and that she should stop there by the trees five or ten minutes is perfectly consistent. Does that look unreasonable? Do you not see families out in the yard, strolling about in your own yards, stopping under the trees, sitting under the trees, especially when they have a right to have a little leisure. Mrs. Churchill says, “I stepped inside the screen door, and she was sitting on the second stair, at the right of the door. I put my right hand on her arm, and said, ‘O Lizzie.’ I then said: ‘Where is your father?’ She said, ‘In the sitting room,’ and I said, ‘Where were you when it happened?’ and said she, ‘I went to the barn to get a piece of iron.’” Miss Russell says, “she told about going to the barn, she says she went to the barn, she told us when she came in she saw her father, and he was killed.” “Did she say anything about why she went to the barn?” “Not until I asked her.” “State what you asked her and what she replied?” “I said ‘What did you go to the barn for, Lizzie?’ and she said, ‘I went to get a piece of tin or iron to fix my screen.’” “Did she refer to any screen in particular, or simply ’my screen?’” “My screen.”
Now, Mr. Fleet told us that she went into the dining room, she said that her father lay down and that she went out into the barn: and he brings in the half-hour—he is the only one that does. And then he goes there and talks to her about it, as to whether she means a half-hour or twenty minutes. Now just listen to this man. Recollect when this was, Thursday afternoon. Recollect he is the same man that said “Dr Bowen was holding the door on him—holding the fort.” Think of it. And Mrs. Holmes and Dr. Bowen and Miss Russell tell you, and Wilson, the officer who went with him, comes right up here and says there was not the slightest resistance, that he knocked at the door, and just as soon as Dr. Bowen could ask them if they were ready to have the officers come in, and I am sure that was perfectly proper—they were admitted without any trouble. Now this man Fleet was troubled, and he was ascent for a job. He was ferreting out a crime. He had a theory. He was a detective. And so he says, “You said this morning you were up in the barn for half an hour. Will you say that now?” I think the man impertinent. I beg your pardon, the defendant thinks he was: thinks he was impertinent. She said, “I do not say half an hour; I say twenty minutes to half an hour.” “Well, we will call it twenty minutes then.” Much obliged to him. He was ready to call it twenty minutes, was he? What a favor that was; now Lizzie has some sense of her own, and she says, “I say from twenty minutes to half an hour, sir?” He had not awed her into silence. She still breathed although he was there. Think about a woman saying something, ordering something in the presence of a man who talks that way to her, under such circumstances. Mr. Harrington states that she said to him that she was there about twenty minutes. He asks her whether she would not have heard the opening or closing of the door. Why not? “You were but a short distance away, and you would have heard the noise if any was made.” But Bridget said she did not hear the screen door shut at all and she said she would not hear it in her room, and never heard it when it shut unless somebody slammed it or was careless about it. You remember that.
Now you see there is no inference to be drawn from the fact that Miss Lizzie did not hear it when she was in the barn or in the yard for that matter. And you recollect how the side door stands with reference to the yard. That when a person is out around the corner, under the pear tree, or even under the first pear tree that stood from the south door to the barn, he cannot see up to that door because of that jog. So that if she was even out under that pear tree anybody could have passed in or out that side door without her hearing him, much more if she were in the barn, either upstairs or down stairs. Wilson has told us that she said, “twenty minutes to half an hour.” He was there with Fleet. Medley says, “She says she was upstairs in the barn—I am not positive as to the stairs part, she was up in the barn.” Now take that, is there anything unnatural or improbable in her going to the barn for anything she wanted? She was, you will say, a person who was free to go about, and did go about, and went in the natural call of things that she was going to do. You have heard talk of the party at Marion, and you know where it is better than I do, but I suspect from what has been said about it that it is somewhere near the water and where the fish swim, and it would not be strange if a party of women were going there, they would try to catch something—I mean fish; and when they got there they would want something to catch fish with. Perhaps they do; that is the way we bob around for fish up in the country. We don’t have much to do with seafish, but isn’t that common? She said she wanted some lead for sinkers. She also said she wanted something to fix the screen. Perhaps she had both things in her mind. It is perfectly natural. She wanted a piece of tin or iron to fix the screen. If she had set out to be this arch criminal that they claim, she would have had it all set down in her mind so that she would tell it every time just the same, line for line and dot for dot. He had to stay in the court room until the other fellow was heard to hold him. We had twins here; they didn’t look alike. We kept them here; that is Mr. Mullaly.
Now you are going to say, gentlemen, whether you believe Mr. Lobinsky, who stands uncontradicted and undisputed, or believe another man who is fully contradicted by a man with him who was his own associate in the police court. Now, Mr. Foreman and gentlemen, the government knew where Mr. Lobinsky was, and that was at the tinshop of Mr. Wilkinson. They knew where he was. And they knew, too, that Lobinsky’s horse was kept at Mr. Gardner’s stable on Second street, corner of Rodman, and they could have found whether Lobinsky had left the stable at 11 o’clock or 10:30. But we have not troubled them to do that. Mr. Gardner, who owns the stable has told his own story, and has he not told you that Lobinsky’s statement is correct, that he did not leave the stable until after 11 o’clock? He testified that that was because other teams were to be hitched up to go ahead of Lobinsky, and he was late, so that he did not get away until 11 or five minutes past 11 o’clock. My friend Knowlton in cross-examining him wanted to know whether he told the time on his watch by the long hand or the short hand. But that is all right. Its good practice, but it is no test. Gardner remembers it, and gives it, even, but Lobinsky did not have the watch. He told us what time he left and the time he was passing by the yard on Second street. And then we have Mr. Newhall, a man from Worcester, who happened to be there; he comes here and tells you he went along the street, and he fixes the time by the hour that he went to the bank, and the places where he was that morning, and you have these three men that hold it down to the time I refer to, that is 10:30 o’clock. Is it not fair to say Mr. Mullaly is mistaken, to say the least? Then if they want to find anything more about it, we land Mr. Douglass in this case, who was there at the time, in Fall River. They knew about it and they could have proved about it and they know it was as we say, and yet they did not try to prove it. They say a story is true because told all times alike, but those of us that have dealings with witnesses in court know that witnesses that tell the truth often have slight variations in their stories and we have learned to suspect the ones that get off their testimony like parrots, as if they had learned it by heart. Honest people are not particular about punctuation and prepositions all the time. Now did she go to the barn? She says she did and her statement is entitled to credit as she gave it on the spot the moment when Bridget was upstairs and might know about it. Did she go to the barn? Well, we find she did, find it by independent, outside witnesses, thanks to somebody who saw her. Possibly this life of hers is saved by the observation of a passenger on the street. There comes along a pedler, an ice cream man, known to everybody in Fall River. He is not a distinguished lawyer or a great minister or a successful doctor. He is only an ice cream pedler, but he knows what an oath is, and he tells the truth about it, and he says he passed down that street that morning, and as he passed right along it was at a time when, he says, he saw a woman, not Bridget Sullivan whom he knew, coming along, walking slowly round the corner just before she would ascend those side steps. Now there was no other woman alive in the house except Bridget and Lizzie at that time. He knew it was not Bridget by the best instinct, because he had sold her ice cream and he knew her. He says “it was the other woman whom I had never sold ice cream.” Recollect, that was Lizzie or some stranger in the yard. You will say undoubtedly it was Lizzie as she comes back from the barn. It may be asked why did he look in. I say because anyone might do so. They say Lizzie must have looked under the bed. I say Lubinsky must have looked into the yard. He was an enterprising young man, he was looking for business because he has sold ice cream there before, and therefore, he noticed the yard. Now is that something he remembers today and comes up here to tell about or anybody has brought him to tell about? Nobody will make that insinuation in regard to the defendant. Was he got to tell it? Let us see. He told it on the 8th of August to the police, and they had it all in their possession. Now, that is not a yarn made up for the occasion at all, and the only sort of conflict about it is attempted in this way, not to dispute it but to admit or say that Mr. Lubinsky is mistaken about a half-hour of time.
Mr. Mullaly is one of the knights of the handle, you know. You know who he is—Mr. Mullaly. Mr. Mullaly comes with a book, and it is thrown down here on the table with a great display to us, for us to pick it up, and with something written in it. It is not competent evidence and has no business on the table, because it might be lost and carried away, and it should be, but Mr. Mullaly says that on the 8th of August he had a talk with Mr. Lubinsky and Mr. Lubinsky told him it was half-past ten o’clock. Now, if Mr. Lubinsky went by that yard at half-past ten he did not see Miss Lizzie go to the barn. Is Mr. Mullaly mistaken? Gentlemen, as you take cases in court, carefully weighing the evidence, would not you say that Lubinsky went there at the time he states and that the two others passed along that street and that he saw Miss Lizzie going into the house? If that is true, then the commonwealth must take back the charge that she lied about going to the barn. She was out of the house at the very time when the slayer murdered Mr. Borden. I will stop at this time for a moment.
Chief Justice Mason: “The jury may withdraw with the officers for a recess of five minutes.”
One other thought, as you remember, that Lubinsky saw Manning as he was going down and I think Gardner and Newhall also and you know when Manning got there to the house all about it, so that you see it is confirmed again in another way. Then they have an opportunity to find out by Mr. Wilkinson whether this man was really late that day or not, and as they have not told anything to the contrary, we will assume that that is proved. Now the district attorney brought out the fact from Mrs. Bowen that when Lizzie sat there in the kitchen her hands were white and she was pale and distressed, as you know from other witnesses. And I suppose from that he is going to argue to you that she was not all covered with rust and dust that she got in the barn. Well, you will see the strength of that argument, and think what it amounts to. Think whether she could not go up there and look; whether she picked up anything there or not nobody knows. I don’t know how he can tell whether she was fumbling around with dusty iron and lead. There is no evidence here about it, and I have seen many a young woman, and I presume most of them, who could walk out into the barn and come back without getting their hands dirty. So I will not stop long about that. Bridget told about the groan and Mullaly told about the scraping, speaking of her statements, but there is nothing else.
Whether she said that or not, we don’t know. If she did, it was nothing more than the statement that all of us are likely to make. When anything happens we imagine that we heard something; if it had not happened we should not have heard anything. How common that is. Then there were noises not connected with this tragedy which might actually have been heard. There are noises in that street; you were there long enough to find out about that; such noises are a common occurrence. Then it may be that the people in their excitement—Bridget in great excitement because she was running about breathless to find something and Mullaly in the breathlessness of his search may have got it wrong—may not have got it just right. It is not a serious matter. They may argue it for all it is worth on the part of the commonwealth. She thought she heard Mrs. Borden come in. They undoubtedly will make something out of that, so I want your attention there to see about that. This comes now in the first place from Bridget Sullivan. She is asked, after detailing the circumstances to a certain point, “What happened then?” You recollect that Bridget had told Mrs. Churchill that Mrs. Borden had a note and had gone out—“hurried off, did not tell me where she was going.” So you see anything from Bridget about that note and about Mrs. Borden coming in is all sustained. Now Bridget Sullivan says, in answer to the question, “What happened then?” “O, I says, Lizzie, if I knew where Mrs. Whitehead’s was I would go and see if Mrs. Borden was there, and tell her that Mr. Borden was very sick.” You see the confirmation about that note business right there right off. What should she say that she should go and see Mrs. Whitehead for if Mrs. Borden was there, unless she (Bridget) knew that Mrs. Borden had a note and supposed she had gone out as they both did. Then Lizzie said, “Maggie, I am almost positive I heard her coming in, and won’t you go up stairs and see.” Bridget said: “I am not going up stairs alone.” Now, following the testimony down, the very next question is: “Before that time that she said that, had you been up stairs?” “No, sir: I had been upstairs after sheets for Dr. Bowen.”
Now remember how that occurred. When Dr. Bowen came he wanted a sheet to cover up the body of Mr. Borden and he called upon Bridget and Mrs. Churchill to get one. They went into the sitting room and took the key off the mantel and went up the back stairs (where you went) unlocked the door to Mrs. Borden’s room, got the sheets and came down the back. So Bridget had been up the back stairs to that room, but she had not been up the front stairs. Therefore when they got down stairs with the sheets Bridget and Mrs. Churchill knew that Mrs. Borden was not in her own room, because they had been up there. Therefore they knew that she was not in the back of the house, and Lizzie knew that she was not in the back part of the house, because they went up to get the sheets into Mrs. Borden’s room. See how plain that is when you look at the testimony, and it is brought out plainly in the testimony in the questions that are asked by the commonwealth. So you see that when Lizzie spoke about going upstairs to see if Mrs. Borden was in, Lizzie meant the front stairs, because they all knew, the three of them, that Mrs. Borden was not in her own room, and that if she was anywhere in the house she must be in the front part of the house. So Lizzie knew that Mrs. Borden had had a note and had gone out, and Bridget knew that she had a note and had gone out, as they both believed; that Lizzie had seen her up in the room making the beds and finishing up before 9 o’clock, and she had not seen her since, believing that she had gone out, and she recalled that she might have heard her come in before her father came back, before Mr. Borden did, and she said at once, “Go up at once and see if Mrs. Borden is not up in her room. Mrs. Borden is not here. I heard a noise as though she came in, and she must be upstairs in the front room somewhere. Go and see.” Now, that is natural. They thought she was in the upper and back part of the house, and there can be no doubt about that, because Miss Russell testifies to the same thing Mrs. Churchill does, Bridget Sullivan does, and then, after they came down, there it was that conversation about going to Mrs. Whitehead’s occurred. “What happened then?” “Oh,” I says, “Lizzie, if I knew where Mrs. Whitehead’s was, I would go and see if Mrs. Borden was there.” These two women acting in perfect good faith about it, relying upon the truth of that note story, which Mrs. Borden had told them. Then Bridget would not go up the front stairs, because in order to go up the front stairs they must necessarily pass through the room where Mr. Borden’s dead body was lying, or else they must pass through the dining room way and go by the corner of the room. They went that way, and found Mrs. Borden killed. Mrs. Churchill and Miss Russell tell precisely the same thing in substance about going up and finding Mrs. Borden. Now the suggestion on the part of the commonwealth would be, if this evidence was not so clear, that Lizzie knew that she was up there, and if you assume Lizzie had killed her, then, of course, it would be quite plain that she knew where she was, but if you do not presume the defendant guilty to begin with, it shows nothing until she is proved guilty. Then we have no difficulty with the statement of these three women. They define and make it very plain. Mr. Borden, you will remember, came in, as I have said, about 10:45 o’clock. Now the inference that Mrs. Borden had come in was the most natural thing in the world; hearing some noise in the house, perhaps the shutting of a door. By and by we will say something about who might have shut it—perhaps the movement of somebody else in that house that she heard—she had no occasion to go to look and see, she was not called to, and her father came in, and as Mrs. Borden had not appeared in the sitting room, you understand, and as the two women going upstairs found she was not in the back room upstairs, they would undoubtedly think if she had come in she was in the front part of the house, and then she recalled as she thought she did the fact that she had heard a noise which indicated to her Mrs. Borden had come in. Now, I submit to you, gentlemen, that, taking the testimony as it is here, and there is no other that I know of, it exactly and clearly gives the situation as it was, and just as they acted. Then they said that she showed no feeling when her stepmother was lying dead on the guest-room floor; that she laughed on the stairs.
Well, Bridget said something about opening the door. She said she said, “O, pshaw,” and she said it in such a way that Lizzie laughed, standing somewhere at her room door, a room where she could not see into the guest chamber, and the door of which, so far as we know, was closed. Nobody knows anything about it. What was there then why she shouldn’t laugh? O, they say, she had murdered her step-mother. Oh, hold on. That is not proved yet. You might think that everything was all right in your house, and somebody track a joke on you and you laugh, but if the evidence should turn out that your son had fallen dead on the floor above, that does not warrant the conclusion that you were laughing when his dead body was lying on the floor, because you did not know it. They say she knew it. Well, then, I should agree if she knew it and was laughing and joking about what Bridget said that she should be blamed, and we would criticize her and condemn her, but they have not any evidence of it. They assume it, and the district attorney opened it, that while the dead body of Mrs. Borden was lying in the guest chamber Lizzie laughed. Well, the inference was that she had murdered her and then laughed. But that is assuming what they have not proved. They say she did not look at her dead father. Well, she had looked at him with horror. She had come in from the outside into the back hallway and come into the kitchen, and the door stood ajar, and she started to go into the sitting room when this horrible sight met her gaze. She had seen her father. Did they ask her to go and wring her heart over the remains that were mutilated beyond recognition? and because she did not rush into the sitting room and stand over against that mutilated body they say she is guilty. Why, Mrs. Churchill and Bridget Sullivan and Miss Russell could not pass through there unless they touched the corner after the body was covered. Let us ask of other innocent people the same thing that you would ask of Lizzie. They say that Miss Lizzie did not show any signs of fear, but that Dr. Bowen and Mrs. Sawyer were afraid. They told you about it. Well, how do they know she did not show any signs of fear? Why do they make any such statement as that? Because she said to Bridget, “You must go get somebody, for I can’t stay in this house alone.” Look at things in a natural and easy way, in a common sense way, assuming her innocence and not assuming her guilt. That is the way you will meet these things and all of the facts. Then they start off on another track, and they say she killed her stepmother and her father because that was a house without any comforts in it. Well, gentlemen, I hope you all live in a better way than the Borden family lived, so far as having good furniture and conveniences. Are your houses all warmed with steam? Do you have carpets on every one of your floors, stairs and all? Do you have pictures and pianos and a library and all conveniences and luxury? Do you? Well, I congratulate you, if you do.
This is not a down-trodden people. There is lots of comfort in our country homes. I know something of them, but I remember back in my boyhood we did not have gas and running water in every room. We were not brought up that way. We did not have such things as you saw in the Borden house. It wasn’t in poverty-stricken, desolate quarters like a shanty, where the folks simply live and breathe and do not eat anything. They paraded here the bill of fare for breakfast. I do not know what they are going to talk about, what sort of breakfast the ordinary country people have in the houses. They do not live as well as we do in hotels, perhaps they live better. I do not wish to say a word against the hotel, but perhaps a coarser fare is as good as the fixed-up notions that we get on the hotel table, but at any rate it is the way people live in our towns and cities, and no considerable number of people have come to harm.
Andrew Borden was a simple man, an old-fashioned man. He did not dress himself up with jewelry. He carried a silver watch. He was a plain man of the every day sort of fifty years ago. He was living along in that way. His daughters were brought up with him. They had become connected with prominent things in Fall River, for they lived at home. They had the things which you saw upon them. You will know well enough they were not poorly supplied, and were not pinched and were not starved into doing this thing. Do you think it looked as if they were starved into the crime and pinched into wrong? Here was a young woman with property of her own. Starved to death, they say; pinched so that she could not live, wrought up to frenzy and madness, so that she would murder her own father for the want of things, and yet, as has been shown here worth in her own right of money and personal property from $4000 to $5000, owning also real estate in common with her sister there in Fall River. What is the use of talking about that? Did she want any more to live on in comfort? Do they say she wanted to get her father’s property or a half of it? Do they reason that she went and killed the stepmother first so that when the property came by inheritance it would pass to herself and sister. They must say something. They say she killed her stepmother because of trouble. That is one of the arguments about which I will speak by and by, but then there is no trouble with her father, as they see, and then she had a change of purpose, or she had a double purpose, to kill Mrs. Borden because she did not like her, and to kill her father because she liked him, but she wanted his money. What sort of a compound! Two motives are running through that argument inconsistent with each other, each directed independently to a specific end: Carried out as to one in the early part of the murder, and then she not only changed her dress and cleaned herself and became another woman, but found herself inhabited with a distinct motive and then slaughtered her father. Sometimes when a young man goes on a rig and becomes dissolute and a spendthrift he will do almost anything to retrieve what he calls the misfortune which he has brought upon himself, and many an old father has found the gray hairs in his head multiplied because of the waywardness of his boy. Sometimes these great crimes are committed in that way, but if you expect to find in this case that a young woman like her was slaughtering her father when she herself was moral and upright and christian and charitable and devoted to good things in this world, you will find something that the books have never recorded, and which will be a greater mystery than the murder itself. They tell us about the ill-feelings. Well, gentlemen, I am going to consider that in a very few words, because I say to you that the government has made a lamentable failure on that question. They say that is the motive that so qualifies the different acts that are testified to here that it puts this defendant in close connection with the murder of Mrs. Borden, and then they say that Mrs. Borden being murdered, Lizzie murdered Mr. Borden for his property, or possibly they may say, murdered him to conceal her crime—for that or some other reason, but it does not rest at all on this foundation of family relations. Let us see what there was in it. What have they proved? They have proved that from five or six years ago Lizzie did not call Mrs. Borden mother. Lizzie is now a woman of thirty-one or thirty-three years old, thirty-two when these crimes were committed. Mrs. Borden was her stepmother, and she was not her own mother. It is true that Mrs. Borden came there when Lizzie was a little child of two or three years, and sometimes we see that where a stepmother has come into a large family and has brought up a family the children know no difference and always call her mother just the same. That is true in a very large degree, happily so, too: but sometimes when the children get grown up, and when they are told about their mother that died long ago, somehow or other there springs up in the mind of the children a yearning or a longing to know of the parent that they really had; and how many a man says, in speaking of the family from which he came, “She is not my mother.”
He calls her mother, perhaps. He introduces her as “my mother,” but the first words after you engage him in conversation are, “She is not my mother, she is my stepmother. My mother died long ago. She lies buried twenty-five years, but still she was my mother.” I suspect that man never lets into the inner chambers of his heart the feeling that anybody else in the world can stand where his mother did. You may gloss it over, you may talk about it as much as you will, but happy is the man that remembers his mother, that pure mother that lived to see him grow up, and kind as anybody else may be, there never goes out of his heart the feeling for that dead one that is gone, that stood first and foremost to him, and nursed him in his babyhood. It does not require passion or ill will to hold that feeling, begotten in the heart. Show me the man that does not stand for the reputation and character of his mother, for nobody forgets that his own mother was the one he first was interested in, although he from a prattling child has never known her to remember her. Now, says Mr. Fleet, in his emphatic police manner, Miss Lizzie said to him, “She is not my mother; she is my stepmother.” Perhaps she did. We will assume she said it, but there is nothing criminal about it, or nothing that indicated it, or nothing savoring of a murderous purpose, is there? Why, Martha Chagnon, a very good looking little girl that was here a day or two ago, stepped on the stand and began to talk about Mrs. Chagnon as her stepmother. Well, I advise the city marshal to put a cordon around that house so that there will not be another murder there. Right here in your presence she spoke of her stepmother. And a good-looking woman came on the stand afterward, and I believe the blood of neither of them has been spilled since. Why, Lizzie, who undoubtedly speaks in just that positive way, when the police asked her about where she was and what she was doing, spoke positively. There are a good many people living in New England who would do the same. They know when they are insulted, and are free in expressing their minds, and sometimes do so too freely and talk too much, but we never think they are going to murder any one. Now you have got the whole thing right there in that statement, as they call it. Now, they say that Mrs. Gifford told us this. It was told on the stand. Let us have it for all it is worth. She is the cloakmaker, you remember. I do not discredit her. “Don’t say mother to me. She is a mean, good-for-nothing thing.” “I said, ‘O.’ She said, ‘I don’t have much to do with her. I stay in my room most of the time.’ And I said, ‘You come down to your meals, don’t you?’ and she said ‘Yes, but we don’t eat with them if we can help it.’” That is the whole of it. That was a year ago last March. Now, my learned friend who opened the case said that Mrs. Gifford would say that she hated her. My friend, the district attorney, who makes the argument, will take out that, will admit she did not say any such thing. You heard her story on the stand, and that was not so. Now I agree with you that Lizzie A. Borden is not a saint, and, saving your presence, I have some doubts whether all of you are saints; that is to say, whether you really never speak hurriedly or impatiently. I hope that is so for the peace of our families, but I do know good-looking men, just as good-looking as you, if you will allow me to say it, that speak sometimes in their households a little hastily and quickly, and sometimes the daughters, too, and sometimes their fathers and mothers do. It is to be regretted that they do, but they will. Yet you don’t read of murders in those houses. There is nothing to indicate any deep-seated feeling. You will hear people speak to each other on the street in such a way that if you thought it really amounted to anything it would shock you. Now, is there anything bad about this case, where a woman like this defendant speaks openly and frankly, and says right out, “She is not my mother: she is my stepmother.” She spoke so about the man who was called a Portuguese. What did she say? “He is not a Portuguese. He is a Swede,” in just the same tone of voice. That is her way of speaking, you will find on this testimony, and she speaks right out. Now these people are not the ones who do the harm in this world. The ones who do harm are like the dog that does not make any noises about it. The dog that comes round your heels and barks is not the one that bites. It is the one that stays inside and looks serious, you will find. So it is with individuals. It is not the outspoken, blunt and hearty that do the injury. But now I do not want to trouble myself about that.
Bridget Sullivan, who lived in the family two years and nine months, who was nearer to all of them than anybody else, tells you the condition of the household. She says, though brought in constant contact with them, she never heard anything out of the way. There was no quarreling. Everything seemed cordial among them. The girls did not always go to the table. They were often out late, and I suppose they did not get down to breakfast as early as the old folks. The longer ago you were born the earlier you will probably rise now. If you were born seventy years ago, you will probably be up in the morning at 4 o’clock, and be disposed to find fault with the Creator that it cannot be summer all the time with more light and longer days. But the girls did not come until they wanted to. They had a right to do that. Bridget says she never heard a word of complaint. And mark you, that Thursday morning on which they tell you that Lizzie was entertaining that purpose or plan to murder both those people—that is, their theory is what they will undertake to satisfy you of—that Lizzie was talking to Mrs. Borden. Bridget Sullivan says: “I heard them talking together calmly, without the least trouble, everything all right.” Mr. Borden talks about the meal, and the conversation goes on in the usual way without the slightest indication of any ill-feeling. That is the way my people do at home. That is the way your family greets you in ordinary conversation. They are waiting for you to come back just now, and they will meet you in the same way I know, and there will be no suspicion about it. O, they say, just look at her, wretch and fiend and villain that she was, she could put all this on when she had terrors unimaginable in her heart and purposes that no language could describe. Well, gentlemen, you have to judge of people according to the ordinary things. There being no proof of such purposes on her part, you will not justify yourselves in ascribing them to her. You will remember that Mrs. Raymond, the dressmaker, a lady to all appearances, came and testified of their being together a few months before, four of them being dressmaking, sitting in the guest chamber sewing, a regular dressmaking party. Philip Harrington ought to have been there and had the whole style developed to him, to learn more than he knows, if it is possible to put anything into his head on the subject. There they are. Was that an angry family? Was that a murderous group? You take another thing. You have them there, as Bridget says, and there is no evidence to the contrary; they have told you the whole thing; when Emma Borden comes on the stand to tell the inside condition of the family they will say to you that Miss Emma Borden, the sister who was away from home on a visit at this time, against whom they have not the slightest suspicion, but they will say that her sisterly affection carries her along to swing her from the truth. You’ll judge of her. I will not apologize for her. She has a right to be where her sister is. It is creditable that she does stand by her and it will take a long time for a man in his heart to say she is untruthful for telling what she does here.
She went on to say that they had trouble five or six years ago in regard to property and there was no resentment so far as Lizzie was concerned; it was all adjusted. When we get the open and unrestrained testimony of Miss Emma we are told there was trouble. The father had put in Mrs. Borden’s hands a piece of property, and she says: “we did not feel satisfied, and we told him so, and then came the word to us through another person, ‘your father is all ready to give you a property for yourselves to make it even if you will only ask for it.’” They asked for it and got it. And Emma says she never felt right about it afterward. She says up to the day of the death of Mrs. Borden she had not overlooked it, but she says as to Lizzie there never was any trouble about it—never was after that time. There is a difference between the two girls. One blurts out exactly as she feels, the other bears what she is called upon to endure in silence. You will find the same separate and distinct dispositions often in the same family. From that time, five years, more than half of it covered by the residence of Bridget Sullivan, there is no word of any trouble or indication of anything except this remark made by Mrs. Gifford. If you take it all, what is there in it that signifies anything, enough to find the motive for these dastardly crimes?
But there is another thing: Here was an old man with two daughters, an elderly one and a younger one. They had gone on together. He was a man that wore nothing in the way of ornament or jewelry but one ring, and that ring was Lizzie’s. It had been put on many years ago when Lizzie was a little girl, and the old man wore it and it lies buried with him in the cemetery. He liked Lizzie, did he not? He loved her as his child. And the ring that stands as the pledge of plighted faith and love, that typifies the dearest relationship that is ever created in life, that ring was the bond of union between the father and the daughter. No man should be heard to say that she murdered the man that so loved her. The old-fashioned man lived in a simple way, did not care anything about the frivolities of life, was not attractive, perhaps, to some of the younger and go-ahead people, but was one who lived in his own way, had worked himself up to what would be called a fortune, had taken care of it, was then superintending its use and the income, and for all that on his little finger was that ring which belonged to his little girl. You may tell me, if you want, that the relation between that parent and child was such that alienation was complete, and wrong was the purpose of her heart, but you will not ask me to believe it. Mind you that on this question of the relations of these people there is not a word that comes from Mr. Morse of any ill-feeling, or from Miss Russell or any other living person, and so I think you will agree with me that there is not anything whatever in this assumption that the feelings were such that the defendant could have had guilty intent and worked out this guilty act. I pass. The learned district attorney, in his opening, said that there was an impassable wall built up through that house. But the moment we got at the wall, down it went, doors flew open and instead of showing a line in the house shut in and hedged in by locks, we find that Mr. Borden’s room was doubly and trebly locked, Bridget’s room was locked and Mrs. Borden’s door was locked, and you find Miss Lizzie’s room locked, as well as Emma’s, the guest chamber is locked, the parlor and sitting room—I don’t know but what everything, and that was all because there had been a burglary in the house and barn, and Mr. Borden, old-fashioned, in that he was, thought they wanted to lock the house pretty securely. He kept a safe in that back room which kept valuables. This was locked day and night, and not a little care was given to the fastening of the doors and all parts of the house. But you see the impassable wall was not as against the two girls, but was simply a matter of protection to keep people out. If it was an impassable wall, and not to keep people out, why did they have a lock on the door to the back stairs, and why did they lock up the attics? They say she rushed in from the outside and discovered the homicide. There is no proof of that. In another place they say she did not go out of the house. They claim in one breath that she did not go to the barn and then say that she ran in and discovered the homicide. Rushed in from where, if she did not go out? But if after she discovered it, she passed in and saw the horrid sight, the testimony shows that she retreated to the side room, and got as far from it as she could. She undoubtedly dreaded an attack from the murderer who had killed her father, and she stood at the closed screen door with the open wood door behind it and shouted to Bridget. Bridget was the quickest to respond. She could not go to the front part of the house without passing the horrible sight, her dead father. Where could she go? Where would you go under the circumstances? She called for Bridget to run and get some one as quickly as she could. If she had murdered those two people do you think she would have called for Bridget as quick as that? Wouldn’t she have gone down the street or done something of that kind where she would not have been in such close proximity to the scene of this tragedy? But she went and shouted for Bridget and asked her to come down, all in the trepidation and alarm, to find Mr. Borden killed. You cannot faint away, you cannot look pale when you try to, and so when Bridget had gone this woman stood pale and trembling by that open door on that August morning. Looking over she saw Mrs. Churchill; Mrs. Churchill, too, saw her, and noticed the distress she was in, and as she stood by the closed window where she could not speak to her she hurried at once to the open window and called out, “O, Lizzie, what is the matter?”
Have you any patience with any man who will tell you that Lizzie stood at that door that morning like a marble statue, without any feeling? I have told you about Mrs. Borden. All those three people were sick in the house on Tuesday, including Lizzie. It was in August weather, and whether they had eaten something or the weather had caused it, we do not know, but the government seems to be floundering around with the idea that because Bridget was not sick, they had been poisoned. There was talk about poison, and poison was feared in the family, because all had been made sick. Then they say for some reason, I do not know what, that Miss Lizzie went downstairs in the cellar that Thursday night. There had been people there examining the rooms and looking over the bodies, and there was water in the pitcher up in her room, and people had been washing there during the day, that Mrs. Holmes said, “If I should stay there all night I should want the slop-pail emptied.”
But that house was surrounded by policemen, and Officer Hyde was there, and Miss Lizzie had a full-grown kerosene lamp in her hand and the windows were all open with ample opportunity for observers outside to see in and those within the house knew that policemen were all around so that there was nothing concealed. Now, a person who is going to do anything to cover up crime will not carry an electric light with him. The criminal goes into the dark to do his dark deed. Miss Lizzie did not see anybody, though they say Officer Ferguson was in front, but he is not brought forward, and if he were he could not see through two high board partitions. That would tax the energy and perspicacity of even a Fall River policeman. Then they say she burned a dress. Well, the general thought in the mind of everybody is that if a person burns up anything in connection with some important transaction, he does it to get it out of the way for the purpose of avoiding observation. That is natural. The government stakes its case on that dress.
The government says: “You gave us up the blue dress that lies before me. That is not the dress. You practically commit a falsehood by giving us that.” The defendant says that this is the dress. The government says we want that bedford cord, and if we had that bedford cord we should know all about it, and you burned the bedford cord. Now, let us look at it. There is a dispute here, a disagreement, not intentional, but unavoidable, among the persons who saw what Lizzie had on that morning, some of them saying that she had on this very dress, or a dark blue dress and another, and Mrs. Churchill speaking of it as a light blue coming almost up to a bay blue, or something a good deal lighter than this.
Now between the two there is a difference of recollection; just as good people on one side say it was a dark blue as those on the other who say it was a light blue. But you will remember that at that time there were several ladies and Bridget was there with a lighter-colored dress, and that those who speak of a lighter-colored dress may have had in mind what Bridget had on. It was not a time for examining colors, and afterward they recollected as well as they could. They are good, honest people, but some of them are mistaken, and of course are not wilfully stating what they do not believe to be the fact. So that there is a conflict of testimony about that. That dark blue dress lying here is given as the one that Lizzie had on. They say, “You had a light blue dress on.” We say it is not so, but we say to you when we produced the dark blue dress you took it and put into the hands of Dr. Dolan, the medical examiner, and you went away with it and used it in framing your indictment, and now you find through Prof. Wood, a man who knows something, instructing Dr. Dolan, that there is not and never was any blood on it.
CHIEF JUSTICE MASON.
Then the government does not want that dress, but another. They want the bedford cord. We will talk about it, then. Let us look at it. Suppose they had this bedford cord. Lizzie had it on this morning, you say. This is the present theory. The government said she had it on up to 12 o’clock, so that she did not change to the pink wrapper until that time. The witnesses all say and every single person who has testified that while she was there and about with them, including Mrs. Churchill, Bridget and Dr. Bowen, Mrs. Bowen and others, there was not a particular spot of blood on it. They say there was no blood on her hands, her face or hair. I am talking now of the dress principally. Now recollect that she had that on. Policemen were coming in all about there. She was lying on the lounge. They tell you that that dress was covered or had blood spots on it and not a living person saw or suggested it. Suppose she did burn it up—the time that had elapsed for observation would be long enough. They had all had it to look at at that time. They had all seen her and every one says there was not a spot of blood on it. So you see you start with a dress that every one of the witnesses they produced says did not have blood upon it. Now, you have removed from that all idea that that dress was burned with a wrongful intent, because all the witnesses say it was perfectly clear of blood. Now, what more? That dress was in that closet. You, gentlemen, saw it over the front door, and there it remained. In that closet were eighteen or twenty dresses, and the government witnesses claimed that they did not see any such dress, notwithstanding that Miss Lizzie had eight blue dresses of different shades in that hall closet. They examined and did not see any that had a particle of blood upon them, and so the pretense of the government is that the dress was not in there, but Miss Emma says that when she came home on Thursday night she went to the closet room to put away her clothes and that on Saturday night she was there again and that dress was hanging on the second row of the nails that were driven into the edge of the shelf. She says she discovered that old dress hanging there that had been covered with paint ever since May, and by covered with paint I mean stained and daubed with it. She spoke to Lizzie about it, saying, “Why don’t you get rid of that thing. I can’t find a place to hang my dress on?” It had been in there, and on Saturday night they ransacked this place and found the dress which they supposed had blood upon it. They carried it to Dr. Dolan, who made the discovery, certain to their mind, that would convict this woman, and so they did not want anything else. They went through the form of looking over everything else, but had got the damning evidence here; but when Dr. Dolan conversed with a man who knew something, they were told it was not blood at all, and then they said: “Get another dress.”
Now, is it true? Was there grease or paint on it? We have brought you the painter here that painted that house a week earlier in May, and we have brought a dressmaker who made the dress, and the painter has told us that Lizzie did the superintending of the painting, and got up at 6 o’clock in the morning to see that the paint was of the proper color, and says that she tried it upon the side of the house. You have heard Mr. Grouard, who testified that that dress had got soiled, and said that it was not fit to wear. And then it was not worn of any account except on the days when she had dirty work to do, and Emma knew about it, Mrs. Raymond knew about it, and it is the indisputable fact that it was besmeared with paint and it was not fit for anything else. Why, we are talking about a dress that did not cost but twelve-and-a-half or fifteen cents a yard and took eight or nine yards to make it, and did not cost altogether when it was commenced probably over two dollars, and was not good for anything after they got it done, because the material was so poor, wearing out and fading out. And then it got dirty, got paint on it, and what more did they want of it? As Emma said, “Put it out of the way. Why do you keep the old thing?” This morning, you remember, was after the police had searched everything in the house so completely that there was nothing more to be found unless they took the paper off the walls and the carpets off floors, and we will take their word for it. Unless that, there was nothing more to be seen and nothing more to be found, and they had all they wanted, and had got her clothes and her stockings, and even an unmade dress pattern, and wanted to see if that had not been made up into some sort of a mantle to wrap her up in. They had got the whole thing, and had looked over everything, and had taken all they could find and all they wanted, and notified them they had all got through. Then, in obedience to Emma’s injunction, Lizzie walks down into the kitchen with it that Sunday morning, the windows all open, no blinds shut, policemen in the yard looking right in at everything, that was going on, and deliberately and in the presence of Emma—Emma saying to her “Well, I think you had better do it”—put it into the fire and burned it up. Had not she time enough Thursday morning down to that time to burn it up without anybody knowing it, if it was covered with blood? Had not she time enough to get it out of the way, and if she had that purpose to cover up this crime, if she had committed it, would she have burned it in the presence of her sister and Miss Russell and said she was going to do it? That is not humanly probable. Now, you have got the whole thing about the dress. There is no concealment about it. And when Miss Russell, in her trepidation, and having been advised by somebody about it, came to her and said: “I think you have done the worst thing you could in burning that dress,” Lizzie spoke up in her prompt and honest way, saying, “O, why did you let me do it, then?” reproaching them for not advising her against it. And, truthful as they are, when they knew Miss Russell had been questioned about the matter, they said tell all you know about it. And Miss Russell walks to the man Hanscom and says she has come to tell him because they said go and tell about it. Lizzie said: “Go and tell all about it.” It does not hurt people, sometimes, to tell the truth, to tell all about it. But, gentlemen, hang upon that one blue dress. They have it in the testimony now; they know all about it. Their own witnesses that they bring do not help them at all in this theory. But I ask them this: If Lizzie Borden killed her mother at 9:45 o’clock that morning and then was ready to come down stairs and greet her father and meet him, having on the blue dress, do you think that is probable, besmeared and bedaubed as she would have been with the blood of the first victim, standing astride and chopping her head into pieces by these numerous blows, blood flying all over the walls and furniture, on the bed and everywhere, and she wasn’t touched at all with blood? Then, of course, they are going to say: “O, but she changed her dress, and then, when she killed her father she either had that back again or put on another.” Did she have it back again? Then she had to put that on over her clothes again, and over her person, exposing herself to have her underclothing soiled in that way, a thing not probable in any way. And then, if she put on another dress, then there were two dresses to burn instead of one. The government only wants one; they have all the rest. Think of it. She walked right into that sea of blood, and stood there, slashing it over herself in the first murder; then went and took off that dress and laid it away until her father came in, and then dressed herself for the second slaughter. Then they say that she murdered these two people because Mrs. Reagan, I forbear almost to mention her name, came up here and told you that those sisters had a quarrel, and that Lizzie said to Emma, “You have given me away.” Gentlemen, if there is anybody given away in this case, it is Mrs. Hannah Reagan.
We have got right over among the reporters for the solid truth, now, and we have got John R. Caldwell and Thomas F. Hickey, and John J. Manning. They came from different papers and different cities, and these gentlemen tell you they went to Mrs. Reagan and she said there was not a word of truth in it, and while Mr. Caldwell was trying to find out the facts from Marshal Hilliard, that official, in the abundance of his politeness, told him to get out. My learned friend asked Hickey if it was not a “scoop” between the Boston Globe and the Boston Herald.
And they say that possibly she contradicted herself on some little things, and you noticed the humor there was about it when Philip Harrington said, “I advised her not to submit to another interview that day.” I thank him. But in walked the rest of the score, and they proceeded to interview, not asking Harrington’s leave, and Harrington himself went there that night again to try his search over with her. That is the way they dealt with her. Now, gentlemen, there is not one of them that, interpreted in the light of the common every-day transactions in the household, is entitled to your credit. And if not, then you cannot group them so as to make them strong or of any influence. She did not try to get Bridget out of the house. If she had undertaken to do these deeds, think you not that she would not have sent Bridget down street to buy something, to go for the marketing, to go to the store, one thing and another? Or send her on some errand, and then have had time undisturbed. You know that she would. But instead of that, everything goes on as usual, and Bridget was about the work. Lizzie happens to walk out to the door, and Bridget says to her, “You need not lock the door, I will be around here.” Bridget knew what the habit of that house was, and so she said, “You need not lock that door, I will be around here.” So Lizzie did not lock it. Lizzie called her attention later after she got the work done, and that they say, after Mrs. Borden was killed, she called her attention to locking the doors if she went out, because she herself might go out. And she spoke to her about the cheap sale at Sargent’s, and there is no doubt about that being true, because they could readily find out in Fall River whether there was any cheap sale at Sargent’s at that time. Now, these are the grounds on which the government will claim or has claimed, and I don’t know what other theories they have claimed, the guilt of the prisoner.
Who did it, and what did it? You see last year they had the theory about these other things, and if they could have tried the case at that time they would have sought to convict this woman on those first four. They now do not dare to say that they would ask to convict her even upon these. They say it may have been. Is the government, trying a case of may-have-beens? Will the judges tell you, as they charge you, that you can convict this defendant upon a theory that it may have been. I think not. Never. And, if they cannot tell you that that is the implement that committed the crimes, where is it. Fall River seems to be prolific of hatchets. Perhaps if we wait awhile there will be another one born. Possibly the district attorney, or the officers over there—not the district attorney, for I don’t think he has anything to do with it, to do justice to him, or possibly some officer, will find some other hatchet and want to bring it in. Well, we are thankful, gentlemen, that this woman was not tried last August or September, because then, if she had gone to trial on the things that are now declared to be innocent, and they had convicted her with the cow’s hair and the appearances of blood, she possibly would now have been beyond their recall, although they had actually put her to death wrongfully. So much for the theory of experts. And now we are asked at this time to take up another one that they do not vouch for and that they did not dare to stand on, and we are asked to submit this defendant to that incriminating evidence which they say they are not sure about or may have been, and they want to convict her now on things they do not know anything about and do not claim to know anything about, and put it out of their power, six months hence, to tell them if she knows anything about somebody else committing these murders. They have had her for ten months in close control. It has been irksome and wearisome and wearing. Bad as the government would represent her home to be, and falsely so; bad as they would picture it, it is a paradise compared with a jail, and they have transferred her, such is the process of the law, from her home into the custody of the State. And they thought that Tuesday’s sickness and Wednesday morning’s sickness was caused by some irritant poison. But Mr. Wood said: “No, everything is all right; no blood, no poison, nothing whatever.” He has practically said to these men: “Hold on, you are going too far; you cannot go this way.” Now failing in that, as I argue to you, they have unmistakably, they proceed upon the theory, who did it? Now we are not obliged to resort to that, as I told you at the outset. The question is, is this defendant a guilty person, and that is all. But they say, and they said they would prove to you, that there is exclusive opportunity. Well, gentlemen, I meet it right squarely. I say that if they can lock into that house Bridget and Lizzie alone and without having any other way for any other person to get in, and no other person does get in, and two persons are found dead, I am ready to say that Mr. Borden did not kill his wife in that way and then afterward kill himself. I am sure about that. But the exclusive opportunity is nothing but an anticipation that was not realized, as I think we have shown you.
They said nobody else could have done it. Emma was gone. Morse was gone. There is no doubt about that. Bridget was out doors, they said, and later in her room. They said that the defendant was really shut up in the house with the two victims and that everybody else was actually and absolutely shut out. Now I think you and I will agree about the evidence. The cellar door was undoubtedly locked; I mean the one outside. I have no doubt of that. The front door in the usual course, so says the evidence, was bolted up by Lizzie Wednesday night and unbolted by her Thursday morning. Now they assume she bolted it Wednesday night, but they are not going to assume, I suppose, that in the usual course she unbolted it Thursday morning, but I do, because that is the evidence, leaving only the spring lock on when she unbolted it. They say you do not know that. Well, I say, you do not know it, and you have got the burden of proof, not I. It was fastened by the bolt when Bridget let Mr. Borden in, that is true—the bolt and the key.
The side screen door, gentlemen, was unfastened from about 9 o’clock to 10:45 or 11. That is when Bridget was washing windows and about the house and around the premises in the way she said she was. Now, if that door wasn’t locked, gentlemen, Lizzie wasn’t locked in and everybody else wasn’t locked out. Was it so, the screen door unfastened? You know Bridget said to Lizzie, “You needn’t lock the door, I am going to be around here.” There is no doubt about it. Bridget says she didn’t lock it. Then there was a perfect entrance to that house by that rear screen door, wasn’t there? And when the person got in all he had to do was to avoid meeting Bridget and Lizzie. Bridget was outdoors, she wasn’t in the way, and therefore there was but one person in the house so far as appears, one person below, against whom the intruder could run. Now, look at it. Bridget was outside talking with the Kelly girl, over there on the south side, away off at the corner. She said plainly and decidedly there was nothing to hinder anybody going right in. Mr. Borden had gone down street and there was nobody there on the outside but Bridget, and she was everywhere on the outside. She washed the parlor windows. You know how those are. She couldn’t see the side door when she was there. She went to the barn seven or eight times for water, she says: it may have been more. She was at the dining room windows on the north side of the house; and she said that when she was there she couldn’t even see into the dining room, because the windows are so high that unless a person stood up close to the window they couldn’t see in.
Now, see the significance of that. The government will be going to claim that she stood there and she could have seen way across into the sitting room. But she could not. She was washing the windows with a pole and brush, she wasn’t up on the steps on the outside. And then Lizzie was about the house as usual. She was in the house and about the house. Doing just the same as any decent woman does, attending to her work. Ironing handkerchiefs, going up and down stairs, going down to the cellar, to the closet. You say these things are not all proved? No, but I am taking you into the house just as I would go into the house, for instance, and say, what are your wives doing now? Well, doing the ordinary work around the house, getting dinner. Well, where do they go? Undoubtedly they are going down stairs for potatoes, going out into the kitchen, to the sink room, here and there. You can see the whole thing. It is photographed in your mind. It is just the same there. She was ironing, she was in the dining room. Bridget says she don’t know but she had the dining room door shut to keep the heat out, and she would have occasion to go down cellar for reasons stated. Might she have gone into the parlor for anything? There was a clock there. There are various things you might think about. Now, suppose the assassin came there, and I have shown you he could without question, the house was all open on the north side, and suppose he came there and passed through. Suppose Lizzie was upstairs, suppose she were downstairs in the cellar. He passed through. Where could he go? Plenty of places. He could go upstairs into the spare room, right up the front stairs, and go in there; he could go into that hall closet where you opened it and looked in, and where two men can go in and stand; he could go into the sitting room closet; he could go into the pantry there in the kitchen; you saw that. He could go into various places. He could go into just such places in that house as all these thieves run into if they can find a door open. So it was easy enough for a man to do that. It was easy enough for him to go up into that bed chamber and secrete himself. Now, what is going to be done? He is there for the murder; not to murder Mrs. Borden, but to murder Mr. Borden. And he is confronted and surprised by the former. And he knows—possibly he is somebody that she knew—you do not know, she cannot tell us—somebody that would be recognized and identified, and he must strike her down; and his purpose to kill Mr. Borden would not stop at the intervention of another person, and Lizzie and Bridget and Mrs. Borden, any or all of them, would be slaughtered if they came in that fellow’s way.
Now, at that time in the morning, with the opportunity to go in there and go up into all the house, and when he went in there and had murdered Mrs. Borden in that front chamber, Lizzie could pass up and down stairs, and could go to her room, and know nothing about it, see nothing about it, because of course he did not have the door open and disclose himself. She could pass up and down stairs. There is no trouble about that, closed door or open door. And when he had done his work, and Mr. Borden had come in, as he could hear him, he made ready then to come down at the first opportunity, and when he came down he would very naturally leave the door open, and so they found it afterward, the door, I mean, to the spare chamber. He could come down, and he was right at the scene ready. Bridget was outdoors, Lizzie outdoors, on all the evidence, which you certainly believe. And then he could do his work quickly and securely, and pass out the same door, if you please, that he came in at, the side door. Now, that is not all. It is well enough to see that a person could come in at the front door. The bolt slid back in the morning, the latch locked, a man can open that door, they all say, by giving it a pressure and trying to come in. And when he gets in what does he do? He doesn’t want to be surprised. He locks the door himself, he takes care of himself, and then when Mr. Borden comes it is slid back by Bridget and left in that way. It is easy to see all these things. You can see then how everything in this idea of exclusive opportunity falls to the ground, because there was no exclusive opportunity.
Now, it is not for us to maintain a theory. It is for the government to prove theirs. You may adopt a theory just as well as I. You may find other theories, as I have no doubt you will as you look at this evidence. You will see other ways in which persons could enter that house by which the exclusive opportunity theory is overturned. It is not a matter for you to sit down in the jury room and criticise the theory that I have advanced to you, because you are going to sit down in the jury room and criticise the theory that the government advances, and you will see that it is vulnerable, and when you see that a person can take one of those theories as well as another, you will hear from the court that you cannot convict upon such evidence, because all the essential facts must be in harmony with this charge against the prisoner, and must not be in harmony with any other theory or any other reasonable explanation. Now, there are two or three things which in the hurry of speaking this morning—perhaps you thought I had not hurried, but speaking rapidly, they were inadvertently passed by—little things, but I want to speak of them before I pass on. Miss Lizzie was ironing downstairs, and there cannot be any question about that. Bridget says so and you recollect the testimony of Miss Russell and Mrs. Holmes, that that morning when they were clearing up they found the handkerchiefs that she had ironed in part, and the sprinkled ones were carried upstairs and put away separately by themselves, a dozen or more. You see that it is genuine; it is not a fiction. It is really one of those little things that help to establish the truth. I must also in this connection speak of Mr. Medley’s testimony, because the commonwealth relied upon Mr. Medley to make the examination, as he said, of the dust in the barn, to show you that Miss Lizzie could not have walked on the upper floor. Now, if you could be sure of that there would be some test in it. If you did not see a track through freshly fallen snow you would say no person had passed there. It would be a little more doubtful about walking on a floor, but when you find a detective looking after this thing, you begin to suspect that he may be in error, and when you find as you do by the testimony, a half a dozen or more people up there in that barn walking around before Mr. Medley got there at all, as it was proved upon the testimony there had been when he got there, and when he met Mr. Fleet and where he met him, between the gateway and the back steps, and then went directly into the house, Sawyer being at the door, you see how unreliable his testimony is. Well, then, you have the testimony of Mr. Clarkson and you have that of Mr. Manning and Mr. Stevens and the two boys that called themselves “Me and Brown,” Barlowe and Brown. Now, those boys, like all boys, just the same as you and I when we were boys, wanted to go upstairs, to look at things about there and stay as long as they could, and it appears they went there and were out in that barn before Mr. Medley came there. He went into the house and talked with Miss Lizzie and was some minutes in the house before he went to the barn. So when he got there there had been people all about there, and those people give their testimony in such a way as to carry the conviction of truth in their statement, so that you find them up there and walking around in the very place where Mr. Medley went to look, and it shows you that Mr. Medley must have been in error. His detection was not so sure as he thought. He was mistaken about it, consequently while he may have honestly meant what he said, I do not call that in question for the time being, but I want to say that that is not anything which you can depend upon under these circumstances, and when you find him confronted with three or four other witnesses, John Donnelly and the boys and Clarkson, there can be no question that Mr. Medley is mistaken, so that we have in addition to the positive proof that Miss Lizzie went to the barn, to which I called your attention this morning, the affirmation of these other witnesses that they were there, and Mr. Medley finds nobody to support him.
Why, do you not all think with me of what a blessed Providence it was that interfered with that girl, so that as she walked about that house, passing from the sitting room into the dining room and hall, she did not step on some of the blood and have it on her shoes? Anybody else, according to the theory of the government, could have stepped on that blood and have bloody shoes, but if Lizzie had walked there just the same as any other person innocently, and there had been so much as a pin head stain upon one of her shoes, it would have led her to the severest penalty on their theory. See within what close limitation we walk in commonest things and see how close we come to precipitate of danger when we find any part in the wrong. Why, upon the theory of the government—no, it isn’t the theory of the government, for I really do not know what it is, but the handleless hatchet down there in the box, the theory being for the time, if it is a theory and is indulged, that she ran down and put that through a course of washing, scraping with ashes, etc., and threw it up in the box after breaking the handle off, as claimed, and then got rid of the handle; they say that they found it there, and put it right up into the box to which she directed Bridget to go with the officers and find the hatchets and axes. Why gentlemen, she is not a lunatic or an idiot. She is a great colossal contriver of wrong and murder, shrewd, discriminating, far-seeing, with premeditated malice aforethought, and planned all this thing. Well, she did not plan so foolishly as that. She would not send officers to find the very thing and in the very place where she had put it. She burned no clothing that day. She put none away. They tell us nothing about that with all the vigilance of their searches, and you know that the officers say that when they went there first, and looked in that box down cellar, they took out the two smaller hatchets that were on top. Now, whatever the theory, or any theory of the government in regard to that hatchet, you have got to assume she was down there and washed it up and got it all clean beyond what science can do, and got the blood out of it, and then broke off the handle, and went herself and took out the other two hatchets so as to get this old one underneath, and then she had it all covered with ashes, too. And when they found it that Thursday afternoon it was all dry and covered with dust like the other. They undertake to tell you it was coarser dust. Just see into what a labyrinth of impossibilities and improbabilities they try to lead this woman. Then she had to run upstairs, run up to her own room and make a change, run down cellar and take care of herself, and take care of the hatchets, upon their theory, run back again and get up there and call Bridget—all in that short space of time. I said it was morally and physically impossible. You may find her not guilty, if that be your judgment, for two reasons. One because you know that it has not been proven. And the court will tell you that if, when you reach that point in your decision, you are not satisfied and convinced as reasonable men, beyond a reasonable doubt, no matter what your suspicions may be and what you may think about it otherwise, you have but one duty to perform and one that is safe to you to render in this case.
You may have heretofore thought things looked dark for her. You may have said, “If they can come into the court and show all the things I have seen in the newspapers, gossip and rumor and report, I might feel that I ought to, but now that I find the government’s case only the thing that it is, insufficient, weak, contradictory, critical, lame, why, I have nothing else to do in my conscience but to say to Massachusetts, we have this woman in charge, you have not proved it against her, we still keep charge of her, and we say to you, you have not proven this against her and she is not guilty.” But there is another ground. If, when you see through this evidence, you are satisfied again, convinced—which is more—you are convinced affirmatively that the woman is innocent, that you are entitled to say, “Not guilty,” and you are bound so to speak. It is rare that the defendant goes so far as to prove her innocence. It is not a task that is set before her. But I dare to speak to you upon that branch in this case with full confidence. Look at it for a period. Take the facts as they are, and I would not misrepresent or belittle any of them. I have not knowingly omitted any of them, for a purpose of benefit to the defendant. Take them as they are. What is there to prove to you absolutely, as sensible men, the innocence of this defendant? You go and search some other man’s house and let me alone. Search somebody else, I think he had some trouble with my father: that would be the policy of such a defendant. What was her conduct? Uniformly, openly frank every time, shutting all the doors against any person that might be put under this foul suspicion. Why, you say, shutting them against herself. Yes, it was the impulse, the outcome of an honest woman. Were she a villain and a rascal, she would have done as villains and rascals do. There was her uncle, John Morse, suspected as you heard, followed up, inquired about, and she is asked and she said, no, he did not do it. He went away from the house this morning at nine o’clock. Some one said Bridget did it. Now there were but two persons around that house as we now find out, so far as we can locate anybody, and the busy finger was pointed at Bridget Sullivan—Bridget Sullivan, only an Irish girl, working in the family, working for her weekly pay, been faithful to them, been there two years and nine months, lived happily and peacefully with them and they have had no trouble, and Lizzie spoke out right determinedly, as you know, and promptly: Why, Bridget did not do it. Then somebody said: Why, the Portuguese on the farm. No, says Lizzie, he is not a Portuguese; he is a Swede, and my father has not any men that ever worked for him that would do that to him. Not Alfred Johnson that worked for them, not Mr. Eddy, another farmer that worked for them, no assistant—I cannot believe it of any of them.
How do you account for that except in one way? She was virtually, if she was a criminal, virtually putting everybody away from suspicion and leaving herself to stand as the only one to whom all would turn their eyes. Suppose she had been wicked and designing and Bridget as innocent as Bridget is to-day. Suppose Lizzie had undertaken to tell something that would involve Bridget, would it not have been easy? And it might have been. Then if she had led the way in treachery and repeated crime Lizzie might have led Bridget right into the toils in which she herself became involved to the relief of Bridget by her statement that Bridget is not to be suspected. It is not every human being who can stand that strain. It is not every man that has strength of purpose and purity of mind.
Did she ever stand in the way, or her sister likewise? Go, search everything, we will come and help you open everything. We will join you; find out all you can. Do all you want to here. Never a sign of reluctance. Never an intimation of objection is the unanimous testimony of everybody that went there. They say she was cool. Thank the Lord there was enough left of her so that she could be cool under the visitations of gentlemen who flocked there by the score. Her clothes, her dress, her unmade dress, her shoes, her stockings, everything, her absolute freedom from the marks of the crime, her readiness to do anything that was wanted, and then that scene of Saturday night which transcends all in exhibition of innocence. There has been that woman shut up in that house, the premises crowded by the police. She was virtually under arrest. She could almost feel the pressure of a hand upon her arm, and in that house on that Saturday night were the mayor and city marshal of Fall River, and in the parlor they called her, her sister and uncle together, and then they began that advising them—now notice how it was done, for this is an essential part of their case, they advised them that the family had better remain in the house.
Miss Lizzie says, why? Well, the mayor says, Mr. Morse, perhaps, can tell you. It was something that occurred down street last night, and then comes the question that from there Morse went down street and had some trouble. Now, that seemed to indicate that Mr. Morse was probably under suspicion, and Lizzie spoke at once as they spoke of putting officers around the house and said, “Why, is there anybody in this house suspected?” and the mayor says, “I regret to say, Miss Borden, that you are suspected.” Then she says, “I am ready to go now, or at any time.”
Gentlemen, murderers do not talk that way. Criminals are not so situated as to have committed this great and monstrous wrong and then have had that superb quietness of spirit and that confident feeling that wrong had been done her in the charge that is made, and the assurance within herself that, God knowing it, she is free and pure. Gentlemen, as you look upon her you will pass your judgment that she is not insane. To find her guilty you must believe she is a fiend. Does she look it? As she sat here these long, weary days and moved in and out before you have you seen anything that shows the lack of human feeling and womanly bearing. A word more. There must be no mistake, gentlemen. That would be irreparable. There can be but one mistake which nobody can ever right, and for which there can never be any atonement to her. If you make a mistake as against the commonwealth that is something which the future may correct, but if you go wrong as to this woman now, and go to the length of saying that she is guilty, and you have done it upon insufficient grounds and the improper findings, the case and the woman have gone beyond your control, and, so far as you can know, beyond the power of man. To condemn her as guilty of the diabolical crimes that have been described to you, when there remains any reasonable doubt in the minds of any one of you of the true verdict, would be so deplorable an evil that the tongue can never speak its wickedness. We say, the crier utters it, God save the commonwealth of Massachusetts, and the prayer is heard in the prosperity of the old bay state, but little it amounts to if we hear some one pray to God for his guidance of the old commonwealth that when we have a prisoner in charge we forget that we can do a good deal toward saving the commonwealth and all her people. It will be little worth preserving if the innocent are to be executed and one calamity and wrong step fast upon the heels of another, and that, too, under the forms of law made as well to shield the innocent as to punish the guilty.
Do I plead for her sister? No. Do I plead for Lizzie Andrew Borden herself? Yes. I ask you to consider her, to put her into the scale as a woman among us all, to say as you have her in charge to the commonwealth which you represent, it is not just to hold her a minute longer, and pleading for her I plead for you and myself and all of us that the verdict you shall register in this most important case shall not only command your approval now, unqualified and beyond reasonable doubt, but shall stand sanctioned and commended by the people everywhere in the world, who are listening by the telegraphic wire to know what is the outcome as to her.
She is not without sympathy in this world. She is not having people by day and by night thinking it is not to be found out in Massachusetts that so great a wrong against her can be committed as to condemn her upon the evidence that has been offered. Gentlemen, with great weariness on your part, but with abundant patience and intelligence and care, you have listened to what I have had to offer. So far as you are concerned, it is the last word of the defendant to you. Take it: take care of her as you have, and give us promptly your verdict not guilty, that she may go home and be Lizzie Andrew Borden of Fall River in that blood-stained and wrecked home where she has passed her life so many years.
Hosea M. Knowlton, attorney for the State, spoke as follows: May it please your honors, Mr. Foreman and you, gentlemen of the jury—Upon one common ground in this case all human men can stand together. However we may differ about many of the issues in this trial, there can be no doubt, and I do not disguise my full appreciation of the fact, that it is a most heartrending case. Whether we consider the tragedy that we are trying and the circumstances that surround it, the charge that followed it, the necessary course of the trial that has been had before you, the difficult and painful duty of the counsel upon both sides of the case, or the duty that shall finally be committed to your charge, there is that in it all which lacerates the heart strings of humanity. It was an incredible crime, incredible but for the cold and merciful facts which confront and defeat that incredulity.
There is that in the tidings of a murder that thrills the human heart to its depths. When the word passes from lip to lip and from mouth to mouth that a human life has been taken by an assassin, the stoutest hearts stop beating, lips pale and cheeks blanch, strong men grow pale with the terror of the unknown and mysterious, and if that be so with what I may, perhaps, by comparison call an ordinary assassination, what were the feelings that overpowered the community when the news of this tragedy was spread by the lightning to the ends of the world? Nay, gentlemen, I need not ask you to imagine it. You were a part of the community. It came to you in your daily avocations, it sent a thrill through your beings and you felt that life was not secure. Every man turned detective. Every act and fact and thought that occurred to the thousand, to the million men all over the United States, was spread abroad and furnished and given for the identification of the criminal, and still it remained an impenetrable mystery. My distinguished friend says, Who could have done it? The answer would have been, nobody could have done it. If you had read the account of these cold and heartless facts in any tale of fiction before this thing had happened, would you not have said, Mr. Foreman—you would have said, That will do for a story, but such things never happen.
In the midst of the largest city of this county, in the midst of his household, surrounded by people and houses and teams and civilization, in the midst of the day, right in that household, while they were attending to their household duties in the midst of their families, an aged man and an aged woman are suddenly and brutally assassinated. It was a terrible crime. It is an impossible crime. But it was committed. And very much, very much, Mr. Foreman, of the difficulty of solving this awful tragedy starts from the very impossibility of the thing itself. Set any human being you can think of, put any degraded man or woman you ever heard of at the bar, and say to them, “You did this thing,” and it would seem incredible. And yet it was done; it was done. And I am bound to say, Mr. Foreman, and I say it out of a full heart, that it is scarcely more credible to believe the charge that followed the crime. I would not for one moment lose sight of the incredibility of that charge, nor ask you to believe it, unless you find it supported by facts that you cannot explain or deny. The prisoner at the bar is a woman, and a christian woman, as the expression is used. It is no ordinary criminal that we are trying to-day. It is one of the rank of lady, the equal of your wife and mine, of your friends and mine, of whom such things had never been suspected or dreamed before. I hope I may never forget nor in anything that I say here to-day lose sight of the terrible significance of that fact. We are trying a crime that would have been deemed impossible but for the fact that it was, and are charging with the commission of it a woman whom we would have believed incapable of doing it but for the evidence that it is my duty, my painful duty, to call to your attention. But I beg you to observe, Mr. Foreman and gentlemen, that you cannot dispose of the case upon that consideration. Alas, that it is so! But no station in life is a pledge or a security against the commission of crime, and we all know it. Those who are intrusted with the most precious savings of the widow and the orphan, who stand in the community as towers of strength and fidelity, suddenly fall, and their wreck involves the ruin of many happy homes. They were christian men, they were devout men, they were members of some christian church, they had every inducement around them to preserve the lives that they were supposed to be living, and yet, when the crash came, it was found that they were rotten to the core. Nay, Mr. Foreman, those who are installed with the sacred robes of the church are not exempt from the lot of humanity. Time and again have we been grieved to learn, pained to find, that those who are set up to teach us the way of correct life have been found themselves to be foul as hell inside. Is youth a protection against crime. It is a matter of the history of the commonwealth that a boy of tender years was the most brutal, the most unrelenting, the most cruel, the most fiendish murderer that the commonwealth ever knew. Is sex a protection to crime? Is it not a matter of common knowledge that within the remembrance of every man I am talking to, a woman has been found who murdered a whole cart load of relatives for the sake of obtaining a miserable pittance of a fortune. Ah, gentlemen, I do not underestimate, I do not speak lightly of the strength of a christian character. Far be it from me to join in the sneers which are sometimes thoughtlessly indulged in that a man who is a good Christian is not therefore a good man. Most of them are. Many times all of them are. But they are all sons of Adam and Eve. They fall because they are human. They fall all at once because they have never been shown to the light, and their fall is all the greater because their outward lives have been pure before. I do not forget what a bulwark it is to you and me, Mr. Foreman, that we have heretofore borne a reputation that is above the suspicion of crimes and felonies. It is sometimes the only refuge of a man put in straits. But nobody is beyond the rank of men. Else would it not have been said even by the disciples themselves, “Lead not thy servant into presumptuous sins.” It was not ordained by the Saviour that the weak and the trembling and the wicked and the easily turned only should utter the prayer, lead us not into temptation. We are none of us secure. Have you led, sir, an honorable, an upright life? Thank your Heavenly Father that the temptations have not been too strong for you. Have you, sir, never been guilty of heinous crime? Is it your strength of character or is it your fortune that you have been able to resist what has been brought against you? Mr. Foreman, let me not be misunderstood. Not for one moment would I urge that because a man or a woman has led an upright and devout life that therefore there should be any reason for suspecting him or her of a crime. On the contrary, it is a buttress to the foundation, to the presumption of innocence with which we start to try anybody. I am obliged to tread now upon a more delicate ground. The prisoner is a woman, one of that sex that all high-minded men revere, that all generous men love, that all wise men acknowledge their indebtedness to. It is hard, it is hard, Mr. Foreman and gentlemen, to conceive that woman can be guilty of crime. It is not a pleasant thing to reflect upon. But I am obliged to say what strikes the justice of every man to whom I am talking, that while we revere the sex, while we show our courtesies to them, they are human like unto us. They are no better than we; they are no worse than we. If they lack in strength and coarseness and vigor, they make up for it in cunning, in dispatch, in celerity, in ferocity. If their loves are stronger and more enduring than those of men, am I saying too much that, on the other hand, their hates are more undying, more unyielding, more persistent? We must face this case as men, not as gallants. You will be slow to believe it is within the capacity of a man to have done it. But it was done. You will be slower to believe that it was within the capacity of a woman to have done it, and I should not count you men if you did not, but it was done. It was done for a purpose. It was done by hatred. But who did it? You have been educated to believe, you are proud to recognize your loyalty, your fealty to the sex. Gentlemen, that consideration has no place under the oath you have taken. We are to find the facts. I am said to be impervious to criticism, but those who have said one thing of me may have the consolation of knowing that the shaft has struck home. When it has been said of me that in the trial of this cause, in the prosecution of this case, there entered into it anything but the spirit of duty, anything like a spirit of revenge, any unworthy motives like ambition or personal glory, if they had known how I shrank from this horrible duty, those slanderous tongues would never have uttered those words. Gentlemen, it is the saddest duty of my life—it is the saddest duty of my life. Gladly would I have shrunk from it if I could have done so and been a man. Gladly would I have yielded the office with which I have been intrusted by the votes of this district if I could have done so honorably. And if now any word I say, any evidence I state, any inference I draw, shall be done with any purpose or intent to do that woman an injustice, may my right hand wither and my tongue cleave to the roof of my mouth. With that spirit, gentlemen, let me ask you to enter upon this case. It was a crime that may well challenge your most sober and sacred attention. That aged man, that aged woman, had gone by the noonday of their lives. They had borne the burden and heat of the day. They had accumulated a competency which they felt would carry them through the waning years of their lives, and hand and hand they expected to go down to the sunset of their days in quiet and happiness.
Hosea M. Knowlton.
But for that crime they would be enjoying the air of this day. But for that assassin many years of their life, like yours, I hope, sir, would have been before them, when the cares of life were past, when the anxieties of their daily avocation had ceased to trouble them, and together they would have gone down the hill of life serene in an old age that was happy because the happiness had been earned by a life of fidelity and toil. Over those bodies we stand, Mr. Foreman. We sometimes forget the past. Over those bodies we stand, and we say to ourselves, is it possible that this crime cannot be discovered. You are standing, as has been suggested, in the presence of death itself. It is only what comes hereafter, but it is the double death that comes before. There is a place—it is the chamber of death—where all these personal animosities, passions and prejudices have no room, where all matters of sentiment are one side, where nothing but the truth, the naked truth, finds room and lodgment. In that spirit I adjure you to enter upon the trial of this case. It is the most solemn duty of your lives. We have brought before you as fully and frankly as we could, every witness whom we thought had any knowledge of any surrounding of this transaction, I do not know of one that has been kept back.
They were not merely the officers of the police. They were the domestic of that establishment, the tried and faithful servant, and, for aught that I know or have heard, the friend of these girls to-day. They were the physician who was the first one called on the discovery of the tragedy. They are the faithful friends and companions of this defendant. And we have called them all before you and listened to what they had to say, whether it was for her or against her. Nay, we called the relative himself and had his story of what he knew in the matter, and all the people who by any possibility could have known anything about this thing we have tried to produce to you to tell all that they could tell. Then there came another class of witnesses, if I may classify them. As soon as this crime was discovered it became, Mr. Foreman, did it not, the duty of those who are intrusted with the detection of crime to take such measures as they thought were proper for the discovery of the criminal. They are officers of the police. When you go home, sir, to your family, after this long agony is over, and a crime has been committed that approaches this in magnitude, or any crime whatever, where will you go? to whom will you appeal? on whom will you rely? Upon the very men that my distinguished friend has seen fit by direction to criticise as interested in this case. He put a question the other day which I forgave him for because it came in heat, but it illustrates what I am saying—saying to one of these officers, “speaking to you not as a police officer but as a man.” It is true they are police officers, but they are men, too. They are to find out what the truth of it is. They made many mistakes. The crime was beyond the experience of any man in this country or in this world; what wonder that they did? They left many things undone that they might have done; what wonder that they did? It was beyond the scope of any men to grasp in its entirety at that time. But honestly, faithfully, as thoroughly as God had given them ability, they pursued the various avenues by which they thought they might find the criminal. My distinguished friend has not charged in words, and it is not true that their energies have been bent to this unfortunate prisoner. It was in evidence that many things were followed up, that many trails were pursued, and I am not permitted even to tell you how many men were followed with the thought that perhaps they had something to do with this crime, how many towns and cities were investigated, and how many people were watched and followed, how many trails have been pursued. Don’t you suppose, Mr. Foreman, they would be glad to-day if it could be found that this woman did not do this thing? Is there a man so base in all this world that hopes she did it, that wants to believe she did it, that tries to believe she did it? Nay, nay, Mr. Foreman. All the evidence in this case that is entitled to great weight from the police officers came before (as I shall show you by and by) any suspicion came to them that she was connected with it. And it was only after they had investigated the facts, had gotten her stories and put them together, that the conviction forced itself upon them, as perhaps it may upon you, that there is no better explanation which will answer the facts that cannot be denied.
A blue coat does not make a man any better; it ought not to make him any worse. They are men; Mr. Fleet is a man, Mr. Mullaly is a man, Mr. Medley is a man, and they are not to be stood up in a row and characterized as good or bad because they are officers, but upon what you think of them as men. There is another thing that troubles my friends—I now include the learned advocate who opened this case as well as the distinguished counsel who closed it—and which perhaps from your ordinary and accustomed channel of thought may have troubled you. I speak of it frankly, for many honest men have been heard to say—I have heard many an honest man say, that he could not believe circumstantial evidence. And I respect the honesty of the man who says it: But, gentlemen, the crime we are trying is a crime of an assassin. It is the work of one who does his foul deeds beyond the sight and hearing of men. All it means is this: That when one sees the crime committed or one hears the crime committed then the testimony of him that sees or hears is the testimony of a witness who saw it or heard it and is direct evidence. All other evidence is circumstantial evidence. That is the exact distinction. Did you ever hear of a murderer getting a witness to his work who could see it or hear it? Murder is the work of stealth and craft in which there are not only no witnesses, but the traces are attempted to be obliterated. What is called sometimes circumstantial evidence is nothing in the world but that presumption of circumstances, it may be one or fifty. There isn’t any chain about it: the word “chain” is a misnomer as applied to it; it is the presentation of circumstances from which one is irresistibly driven to the conclusion that crime has been committed. Talk about a chain of circumstances! When that solitary man had lived on this island for twenty years and believed that he was the only human being there and that the cannibals and savages that lived around him had not found him nor had not come to his island, he walked out one day on the beach, and there he saw the fresh print in the sand of a naked foot.
He had no lawyer to tell him that was nothing but a circumstance. He had no distinguished counsel to urge upon his fears that there was no chain about that thing which led him to a conclusion. His heart beat fast, his knees shook beneath him, he fell to the ground in fright, because Robinson Crusoe knew when he saw that circumstance that man had been there that was not himself. It was circumstantial evidence; it was nothing but circumstantial evidence, but it satisfied him. It is not a question of circumstantial evidence, Mr. Foreman; it is a question of the sufficiency of circumstantial evidence. It is like the refuse that floats upon the surface of the stream. You stand upon the banks of the river and you see a chip go by; that is only a circumstance. You see another chip go by. That is another circumstance. You see another chip in front of you going the other way. That is only another circumstance. By and by you see a hundred in the great body of the stream, all moving one way, and a dozen or two in this little eddy in front of you going the other way. The chain is not complete, some of the chips go up the stream; but you would not have any doubt, you would not hesitate for a moment, Mr. Foreman, to say that you knew which way the current of that river was, and yet you have not put your hand in the water, and yet have only seen things from which you inferred it, and even the things themselves did not go the same way. But you had the wit and the sense and the human and common experience to observe that those that went the other way could be explained, and the great body of them went that way. Mr. Foreman, there have been very few cases of assassination in which there was direct testimony. My learned friend, the counsel, who opened this case, has culled out from the billion of cases that have been tried by juries in English-speaking countries—I think I do not exaggerate—from the thousand million of cases which have been tried upon circumstantial evidence in English-speaking countries, an instance here and an instance there where it was found, perhaps, that there was a mistake; and even those cases, with one single exception (and in that case the man never got hanged) are open to great doubt and discredit. But every lawyer knows, every man who is accustomed to the trying of cases is familiar with the fact that the testimony of men is wrong a hundred times where facts are wrong once. What impresses one as the remarkable and distinguishing feature of this case is the gradual discovery of the surprising fact that these two people did not come to their death at the same time. I have no doubt that each one of you, as you heard the stories as they came flashed over the wires, had the idea that was common to everybody who did not know anything about it, and there was nobody that did, that some man had come in, rushed through the house, killed the old gentleman, rushed upstairs and killed the old lady, and then had made his escape. But it was found that that was not so. It has been proved so conclusively that counsel do not dispute the proposition. It is scarcely worth while for me to recapitulate the evidence. I will not do it. Mr. Wixon, Mr. Pettee, who is not in any way connected with the government and holds no government office—came in there and made their explanation, and as Dr. Dedrick put it, it appeared to him—for he is a physician of experience, that the deaths were several hours apart. Dr. Dolan examined more carefully the blood and the wounds and the head, and he thought there was a difference of from an hour to an hour and a half.
But, Gentlemen, there is within us, provided by the Almighty, a clock by which the eye of science can tell the time. When a man falls into the water and drowns, his watch stops and fixes the time when he drowns; anybody can tell that. But when the human life stops, if precautionary measures are taken, as were taken in this case, a man who is skilled in the examination of these things can tell as accurately the relative time of the death of that man as we can tell the time by that clock up there. And so we proved—ah, it was a suspicion born of consciousness and not of anything we said in this case when it was suggested that we were trying to show the poverty of the mode of her life here; there never has been a word of that on our side of the case; my learned associate did not even hint that we were going to claim there was anything mean or poverty-stricken in this family, and it never was said until my distinguished friend saw fit to defend that family from what never was charged. But for the purpose of scientific investigation which was necessary, we proved—and for no other purpose whatever—what was the breakfast of that family that morning, and that the members of it sat down and partook together. It was a good breakfast, it was the ordinary New England breakfast, and nobody has said the contrary. Do not let me be misunderstood for one single moment in this case. And for that purpose we showed you that these people sat down to breakfast at from seven to quarter past seven, and finished from half past seven to quarter of eight, and ate together and ate at the same time. They lived their lives out prematurely cut off by the hand of the assassin: their bodies lay upon the floor. Their stomachs were taken out, digestion stopped when they stopped, and were sent to the eminent, that scientific, that honest, that utterly fair man, Prof. Wood, whom my learned friends will join with me in saying is the most honest expert there is in Massachusetts to-day. He alone was able to determine accurately the time of their death, assuming that digestion went on normally within them, and he says that in all human probability the time of her death preceded his by an hour and a half; it might possibly have been a half hour less; it might possibly have been a half hour more: Singularly enough, science is corroborated by the facts. Singularly enough, everything fits into that proposition. Andrew Jackson Borden probably never heard the clock strike 11 as it pealed forth from the tower of city hall; and she was found dead with the implement with which she had been engaged in dusting the rooms at her head and close by her death. She was stricken down while she was in that morning work in which she was engaged the last time anybody saw her. And all the evidence in the case points to the irresistible conviction that when Andrew Borden was down at his accustomed place in the bank of Mr. Abraham Hart, the faithful wife he had left at home was prone in death in the chamber of the house he had left her in. At half-past nine, if we are to believe the consensus of all this testimony, the assassin met her in that room and put an end to her innocent old life.
Gentlemen, that is a tremendous fact. It is a controlling fact in this case. It is the key of the case. Why do I say that? Because the murderer of this man was the murderer of Mrs. Borden. It was the malice against Mrs. Borden that inspired the assassin. It was Mrs. Borden whose life that wicked person sought, and all the motive that we have to consider, all we have to say about this case, bears on her. It is a tremendous fact for another thing, a significant fact for another thing. We are driven to the alternative of finding that there was a human being who had the unparalleled audacity to penetrate that house when the entire family were in and about it, so far as he knew, to pursue his murderers with a deadly weapon in his hand, to the furthest corner of the house, and there to select an innocent and unoffending old lady for his first victim, and then lie in wait until the family should, all get together an hour and a half later that he might kill the other one.
This murderer was no fool: he was obedient to craft and cunning. He could not forsee that Bridget would go upstairs. He could not forsee that Lizzie would go to the barn. He might have known from the habits of Andrew Borden that he would come back, but it would be back to a house full of people—Morse might come at any time: he knew not when Emma might come. He was waiting for the family to assemble, this man who committed this deed. It was no sudden act of a man coming in and out. It was the act of a person who spent the forenoon in this domestic establishment, killing the woman at her early work and waiting till the man returned for his noon-day meal in order that he could be killed when everybody would be likely to be around him. It is a tremendous fact, Mr. Foreman. It appears in this case from the beginning to end. She had not an enemy in the world. You and I sometimes have our jars and discords. Andrew J. Borden had had his little petty quarrels with his tenants, nothing out of the ordinary, but Mrs. Abby Durfee Borden had not an enemy in all the world. There she lay bleeding, dead, prone by the hand of an assassin. Somebody went up there to kill her. In all this universe there could not be found a person who could have had any motive to do it.
We must now go into this establishment and see what manner of family this was. It is said that there is a skeleton in the household of every man, but the Borden skeleton—if there was one—was fairly well locked up from view. They were a close-mouthed family. They did not parade their difficulties. Last of all would you expect they would tell the domestic in the kitchen, which is the whole tower of strength of the defense, and yet, Mr. Foreman, there was a skeleton in the closet of that house which was not adequate to this matter—O, no, not adequate to this thing. There is not anything in human nature that is adequate to this thing—remember that. But there was a skeleton of which we have seen the grinning eyeballs and the dangling limbs. It is useless to tell you that there was peace and harmony in that family. We know better. We know better. The remark that was made to Mrs. Gifford, the cloakmaker, was not a petulant outburst, such as might come and go. That correction of Mr. Fleet, at the very moment the poor woman who had reared that girl lay dead within ten feet of her voice, was not merely accidental. It went down deep into the springs of human nature. Lizzie Borden had never known her mother. She was not three years old when that woman passed away, and her youthful lips had scarcely learned to pronounce the tender word mamma, and no picture of her lay in the girl’s mind. And yet she had a mother—she had a mother. Before she was old enough to go to school, before she arrived at the age of five years, this woman, the choice of her father, the companion of her father, who had lost and mourned and loved again, had come in and had done her duty by that girl and had reared her, had stood in all the attitudes which characterize the tenderest of all human relations. Through all her childhood’s sicknesses that woman had cared for her. When she came in weary with her sports, feeble and tired, it was on her breast that girl had sunk as have our children on the breast of their mothers. She had been her mother, faithful persevering, and had brought her up to be at least an honorable and worthy woman in appearance and manner.
This girl owed everything to her. Mrs. Borden was the only mother she had ever known, and she had given to this girl her mother’s love and had given her this love when a child when it was not her own and she had not gone through the pains of childbirth, because it was her husband’s daughter. And then a quarrel; what a quarrel. What a quarrel, Mr. Foreman. A man worth more than a quarter of a million of dollars, wants to give his wife, his faithful wife who has served him thirty years for her board and clothes, who has done his work, who has kept his house, who has reared his children, wants to buy and get with her the interest in a little homestead where her sister lives.
How wicked to have found fault with it. How petty to have found fault with it. Nay, if it was a man sitting in that dock instead of a woman, I would characterize it in more opprobrious terms than those. I trust that in none of the discussion that I engage in to-day shall I forget the courtesy due from a man to a woman; and although it is my horrible and painful duty to point to the fact of this woman being a murderess, I trust I shall not forget that she is a woman, and I hope I never have. And she repudiated the title that that woman should have had from her. Did you ever hear of such a case as that? It was a living insult to that woman, a living expression of contempt, and that woman repeated it day in and day out, saying to her, as Emma has said, you are not interested in us. You have worked round our father and have got a little miserable pittance of $1,500 out of him, and you shall be my mother no more. Am I exaggerating this thing? She kept her own counsel. Bridget did not know anything about it. She was in the kitchen. This woman never betrayed her feelings except when some one else tried to make her call her mother, and then her temper broke forth. Living or dead, no person should use that word mother to that poor woman unchallenged by Lizzie Borden. She had left it off herself; all through her childhood days, all through her young life Mrs. Borden had been a mother to her as is the mother of every other child to its offspring, and the time comes when they still live in the same house and this child will no longer call her by that name. Mr. Foreman, it means much. It means much. Why does it mean much? They did not eat together. Bridget says so. My distinguished friend tried to get her to take it back, and she did partly. The woman would have taken most anything back under that cross-examination, but this is her testimony: “That is so, they always ate together.” “Yes, they always ate in the same dining-room.” Bridget is going to have her own way yet. But I do not put it on Bridget. I put it on Lizzie herself. When Mrs. Gifford spoke to her, talking about her mother, she said, “Don’t say mother to me.”—that mother who had reared her and was her father’s companion under the roof with whom she was then living, whose household she shared, to whom every debt of gratitude was due and whom she had repudiated as her mother, she could not find the heart to say to this cloakmaker was her mother, for I believe that you believe this story is true—“she is a mean, good for nothing old thing.” Nay, that is not all—“We do not have much to do with her. I stay in my room most of the time.”
Is not that so? Uncle John Morse came to visit them, stayed over night, and during the afternoon and evening, and next morning, and never saw Lizzie at all—her own uncle. “Why, you come down to your meals?” said Mrs. Gifford, and Lizzie said, “Yes, but we don’t eat with them if we can help it.” I heard what Miss Emma said Friday, and I could but admire the loyalty and fidelity of that unfortunate girl to her still more unfortunate sister. I could not find it in my heart to ask her many questions. She was in the most desperate strait that any innocent woman could be in, her next of kin, her only sister, stood in peril, and she must come to the rescue. She faintly tells us the relations in the family were peaceful, but we sadly know they were not. But you will say, you will fairly say, Mr. Foreman—let me not underrate this thing one atom—you will fairly say, what is that? I don’t know. I don’t know how deep this cancer had eaten in. It makes but little show on the surface. A woman can preserve her appearance of health and strength even when the roots of this foul disease have gone and wound clear around her heart and vital organs. This was a cancer. It was an interruption of what should have been the natural agreeable relations between mother and daughter, a quarrel about property, not her property, but her father’s, and property that he alone had the right to dispose of. A man does not surrender his rights to his own until he is dead, and not even then if he chooses to make a will. She could not brook that that woman should have influence enough over her father to let him procure the little remnant of her own property that had fallen to her from her own folks. She had repudiated the title of mother. She had lived with her in hatred. She had gone on increasing in that hatred until we do not know, we can only guess, how far that sore had festered, how far the blood in that family had been poisoned by the misfortune of these unfortunate relations between them. I come back to that poor woman lying prone, as has been described, in the parlor. It is wicked to have to say it, it is wicked to have to say it, but, gentlemen, there is no escape from the truth. Had she an enemy in all the world? She had one. Was anybody in the world to be benefitted by her taking away? There was one. There was one. It is hard to believe that mere property would have influenced this belief. We are not obliged to, although it appears that property was that which made or broke the relations of that family, and a small amount of property, too. But there was one woman in the world who believed that that dead woman stood between her and her father, and was the enemy of her and the friend of her father, and between whom there had grown up that feeling that prevented her from giving her the title that the ordinary instincts of decency would have entitled her to. Let us examine the wounds upon that woman. So we look at the skull and we look at these wounds, and what do we read there? We know afterwards, by another examination downstairs, that no thief did this thing; there was no object of plunder. We are spared the suspicion that any base animal purposes had to do with this crime. No, Mr. Foreman, there was nothing in these blows but hatred, but hatred, and a desire to kill. What sort of blows were they? Some struck here at an angle, badly aimed; some struck here in the neck, badly directed; some pattered on top of the head and didn’t go through; some, where the skull was weaker, went through. A great strong man would have taken a blow of that hatchet and made an end of it. The hand that held the weapon was not the hand of masculine strength. It was the hand of a person strong only in hate and desire to kill. We have not proved anything yet, but we must take things as they come, no matter where they lead us. It was not the work of a man who, with a blow of that hatchet, could have smashed any part of that skull, and whose unerring aim would have made no false blow or false work. It was the indecisive blow of hatred, the weak, puttering, badly aimed, nerveless blows—I forbear for the present to bring that sentence to a conclusion, for I won’t do it until I am obliged to. I won’t ask you, until I am obliged to, to listen to it. Now we must go back and see what the circumstances of that crime were, for that is the crime we are trying. We will come at the other one by and by, and see how and when and why they happened. But now we are trying that crime, the motive of that crime, the probable author of that crime, who could have committed that crime, what sort of person committed that crime, and why it was done. We find, Mr. Foreman, perhaps the most remarkable house that you ever heard of. My distinguished friend has admitted so many things that I am saved the necessity of arguing very much about the circumstances surrounding the house. Everything was locked up. Why, did you notice there was even the barbed wire at the bottom of the fence as well as on the top and on the stringers? Everything was shut up. It was the most zealously guarded house I ever heard of. The cellar door was found locked by all the witnesses that examined it. The barn door was locked at night and was kept locked all night and opened in the morning, by the undisputed testimony of Bridget, whom nobody has suggested or ventured to suggest has told anything more than she knows in the case. The closet door, up to the head of the stairs, was found locked by Mr. Fleet, and every time that he wanted to go in there, or anybody else wanted to go in there, or Lizzie herself, she furnished the keys that unlocked it. So that door was locked up. The front door was a door which had been kept by a spring lock until that day. The day before, when Dr. Bowen called, Bridget let him in by the spring lock. That night, when Lizzie came home from her call on Miss Russell, she let herself in by the spring lock. There isn’t an atom of evidence that up to the time of this tragedy and when people began to come in and out and upset the ordinary arrangements of that house, but that the front door had always been kept by a spring lock and opened in the morning. That morning it was not opened. It was that woman’s business to open it, and she did not open it. She came down stairs and went into the kitchen and went about her ordinary avocations, and by and by, when Mr. Borden came home, he expected to find it unlocked, because he tried his key to it and it wouldn’t fit, and he had to call her attention to get in. And it was not only with the spring lock, but with the bolt and with the lower lock (all three put together) as people lock their door when they go to bed. Not the shutting in of an assassin, as my distinguished friend has suggested, who was trying to lock himself into the house, wild and improbable as that suggestion is. Then the screen door. It may be, perhaps, as good a way to do as any to refresh your memories about it as well as my own. I will go back to the night before. That afternoon at 5 o’clock that screen door was locked. That night when Bridget went out she locked the back door after her. That night when she came back she found it locked, and she locked up the screen door and the outside door and went upstairs to bed. No chance for anybody to get in that day. The cellar was never unlocked except on the Tuesday before—and I get this right from the testimony because I do not want to argue anything but what is strictly correct. The next morning Bridget got up at 6:15 and took in the milk and hooked the screen door, unlocked the big door. A little while afterwards Mrs. Borden came down, some time between 6:30 and 6:45, and went into the sitting room. Mr. Borden came a little while afterwards, put his key on the shelf, and unhooked the screen door and went into the yard, Bridget remaining in the kitchen all the time. When he came back Bridget was out of view of the screen door and don’t know whether he hooked it or not.
But the next person that went out was Morse, and Mr. Morse tells us—for he fills all that cavity up—Mr. Morse tells us that he unhooked the screen door when he went out and Mr. Borden hooked it after him, so that Mr. Borden must have hooked it when he came in. Then, when Mr. Borden came in he hooked the screen door again, Bridget being on guard in the kitchen all the time. Then Bridget went about her work, eating her breakfast, clearing off the dining room dishes, right there on guard in the kitchen all the time. By and by Lizzie came down. Lizzie came into the kitchen, and her father had not then gone and Bridget went out into the yard a few minutes, because she was sick, too. She remained there in the yard for a moment or two, and when she came to, Lizzie had got through her breakfast and had got back into the other part of the house, she didn’t know where, and Mr. Borden had gone off down town. When she came in she hooked the screen door. Up to that time, Mr. Foreman, no human being could have got into that house. We go further than that. By and by Bridget goes into the dining room to clear off her dining room things, and sees Mrs. Borden dusting in and out of the sitting room and the dining room, and Mrs. Borden directs her, when she gets through her work, to wash the windows. Bridget goes on about her work and Mrs. Borden disappears upstairs and Lizzie is out of sight. She gets through with her work—and I call your particular attention to this. She gets through with her work, Bridget does, goes down cellar and gets her pail, comes back into the house, goes through the house and puts down the windows and there isn’t anybody below the stairs. Mr. Borden has long since gone down town. It must have been about half past nine when Bridget went out to wash the windows, or possibly a little later. She goes out of the screen door, which up to that time no human being could have gone through. She has no more than got out of doors than Lizzie, who had not been down stairs up to that time, who had not gone away from the house, and, as she herself says, saw her mother up there making the bed, or working in that guest chamber, Lizzie comes to the back door to see if Bridget is fairly out of doors, goes back into the house, and the murder is then done, as Prof. Wood’s clock tells us.
Never mind the impossibility—I won’t argue that now, Mr. Foreman—never mind the impossibility for the present of imagining a person who was so familiar with the habits of that family, who was so familiar with the interior of that house, who could forsee the things that the family themselves could not see, who was so lost to all human reason, who was so utterly criminal as to set out without any motive whatever, as to have gone to that house that morning, to have penetrated through the cordon of Bridget and Lizzie, and pursued that poor woman up the stairs to her death, and then waited, weapon in hand until the house should be filled up with people again that he might complete his work.
I won’t discuss with you the impossibility of that thing for the present. I will come back to the facts in this case and ask you whether or not, at that time when the murder was done—up to that time there had been no room for the assassin to come in, and after that time the house was there alone with Lizzie and her murdered victim. The dead body tells us another thing. It is a circumstance, but it is one of those circumstances that cannot be cross-examined nor made fun of nor talked out of court. The poor woman was standing when she was struck, and fell with all the force of that two hundred pounds of flesh, flat and prone dead on the floor. That jar could not have failed to have been heard all over that house. They talk about its being a noisy street. Why, Bridget tells us that she could hear the screen door from her room when it slammed. She did hear Andrew Borden trying the lock of the front door and went to let him in without the bell being rung. Lizzie heard her down there letting her father in. Nothing happened in one part of the house that wasn’t heard in the other. My friend has spent some time in demonstrating, as he believes, to you, the unlikelihood of her seeing her murdered mother as she went up and down the stairs. But Lizzie Borden has ears as well as eyes. If she was downstairs she was in the passageway of the assassin. If she was upstairs there was nothing to separate her from the murder but the thinness of that deal door that you saw. And do you believe for a moment, Mr. Foreman and gentlemen, do you believe for a moment that those blows could have been struck—that woman was struck in a way that did not make her insensible—that she could have been struck without groaning or screaming; that she could have fallen without a jar, a woman as heavy as I am (I just use that by way of illustration), on that floor, nearer than I am to you, sir, from Lizzie, and she know nothing of it? If the facts I have put to you, Mr. Foreman, are true, at the very instant when the murders were committed we leave Lizzie and Mrs. Borden in the house together. Was she in the passageway when this assassin came in? She alone knows. Was she in her room when that heavy body fell to the floor? She alone knows. But we know, alas, we know, Mr. Foreman, that when Bridget opened that screen door and went out to wash the windows, after Mr. Borden had met his half-past nine appointment at the bank, that she left in the house this poor woman and the only enemy she had in the world. And there had been no more chance, if there was any conceivable possibility existing to mankind that anybody else got in than there would be of getting into this room and you and I not seeing them. But that is not all. It is provided, as I humbly and devoutly believe, by the divine justice itself, that no matter how craftily murder is planned, there is always some point where the skill and cunning of the assassin fails him. It failed her. It failed her at a vital point, a point which my distinguished friend has attempted to answer, if I may be permitted to say so, and has utterly failed. She was alone in that house with that murdered woman. She could not have fallen without her knowledge. The assassin could not have come in without her knowledge. She was out of sight and Mrs. Borden was out of sight, and by and by there was coming into the house a stern and just man, who knew all the bitterness there was between them. There came into that house a stern and just man who would have noticed the absence of his wife, and who would have said to her, as the Almighty said to Cain. “Where is Abel, thy brother?” And that question must be answered. He came in; he sat down; she came to him, and she said to him: “Mrs. Borden”—she would not even call her “mother” then—“Mrs. Borden has had a note and gone out.” That stilled his fears; that quieted any apprehensions he might have felt or reason of her absence either from the sitting room or the kitchen, or her own room upstairs, where he was sure to go with his key, as he did. When Bridget went to her room, and I call your attention to this as being the first information that Bridget had of it—it will appear by and by by the evidence itself—before Bridget went upstairs to her room Lizzie says to her, “If you go out, be sure and lock the door, for Mrs. Borden has gone out on a sick call and I might go out, too.” Bridget says, “Miss Lizzie, who is sick?” naturally enough. She said. “I don’t know, but she had a note this morning and it must be in town.”
Mrs. Churchill came over. “Where is mother, Lizzie?” She said: “I don’t know. She had a note to go to see some one who was sick, but I don’t know but she is killed, too, for I think I heard her come in.” I will talk about that by and by, if I don’t weary you too much. Then she said something to Fleet. Although she told Fleet that the last time she saw her stepmother was 9 o’clock, and she was then making her bed in the room where she was found dead, she said, “some one brought a letter or a note to Mrs. Borden,” and she thought she had gone out, and had not known of her return. Then when Bridget came back she wanted to find her. She knew that one of the mother’s only relatives was Mrs. Whitehead, the sister of her husband, as it turned out, because it turned out by Miss Emma’s cross-examination and she said: “Oh, Lizzie, if I knew where Mrs. Whitehead lived I would go and see if Mrs. Borden is there and tell her that Mr. Borden is very sick.” Mr. Foreman, charged with the responsibility of the solemn trust imposed upon him, my learned associate said in opening this case that that statement was a lie. Conscious as I am, Mr. Foreman, that any unjust or harsh word of mine might do injury that I never could recover my peace of conscience for, I reaffirm that serious charge. No note came; no note was written; nobody brought a note; nobody was sick. Mrs. Borden had not had a note. My learned friend said, “I would stake the case on the hatchet.” I will stake it on your belief or disbelief in the truth or falsity of that proposition. Afterwards, after Lizzie had told Bridget that Mrs. Borden had had a note to go out and see some one, that Mrs. Borden had gone out on a sick call and had had the note come that morning, she told her before she went to the room and that murder was discovered, and after it was a matter of common talk, and when Mrs. Churchill was asking Bridget not as a source of original information but for all the news there could be had about it, Bridget then said to her, not “to my own knowledge Mrs. Borden had a note to go out to see some one who was sick,” but repeated it as the story of the original and only author, Lizzie Borden. Obviously that is so, because when my learned and distinguished friend comes to the cross-examination of Bridget, this is what Bridget said, that she never had any knowledge of a note at all, except what Lizzie told her. Pardon me for reading it, because this is vital to the case. “You simply say that you didn’t see anybody come with a note?” “No, sir; I did not.” “Easy enough for anybody to come with a note to the house and you not know it, wasn’t it?” “Well, I don’t know if a note came to the back door that I wouldn’t know. The door bell never rang that morning at all.” “But they wouldn’t necessarily go to the back door, would they?” “No. I never heard anything about a note; whether they got it or not, I don’t know. I never heard anything about a note.” She was obviously telling the story as Lizzie had told it to her. Bridget had last seen Mrs. Borden dusting in the sitting room. She had been told by Lizzie that she had got a note and gone out.
No, gentlemen. In the first place, Bridget was on guard at that back door until she had washed the windows, and no note came that way. She testifies, and you can easily believe her testimony, because the front door was locked with three locks all the time, that nobody came to the front door and rang the bell with a note. I said that Almighty providence directed the course of this world to bring murderers to grief and justice. Little did it occur to Lizzie Borden when she told that lie to her father that there would be manifold witnesses of the fatality of it. They have advertised for the writer of the note, which was never written and which never came. Gentlemen, incredulity sometimes can be dismissed by evidence, but I am not looking in the face of one single man that will believe for an instant that the writer of that note would not months ago have come forward and cleared that thing up. There never was one. Ah, but my distinguished friend is pleased to suggest—he hardly dares to argue it, such is his insight and fairness—he is pleased to suggest that it was part of the scheme of assassination. How! To write a note to get a woman away when he was going there to assassinate her? What earthly use was there in writing a note to get rid of Mrs. Borden, when there would still be left Lizzie and Bridget in the house? O, no, that is too wild and absurd. The whole falsehood of that note came from the woman in whose keeping Mrs. Borden was left by Andrew Borden, and it was as false as was the answer that Cain gave to his Maker when he said to him, “Where is thy brother Abel?” I regret to ask you so to believe, gentlemen. It pains me beyond expression to be compelled to state these things. God forbid that anybody should have committed this murder, but somebody did, and when I have found that she was killed, not by the strong hand of man, but by the weak and ineffectual blows of woman, when I find that those are the blows of hatred rather than of strength, when I find that she is left alone at the very moment of murder, shut up in that house where every sound went from one end to the other, with the only person in all God’s universe who could say she was not her friend, with the only person in the universe who could be benefited by her taking away, and when I find, as I found, and as you must find, if you answer your consciences in this case, that the story told about a note coming is as false as the crime itself, I am not responsible, Mr. Foreman, you are not responsible for the conclusion to which you are driven. Bridget finished the washing of her windows, came into the house, no one being below the stairs, took her step ladder and began the work upon the inside of the windows. Meanwhile the old gentleman was finishing the last walk of his life. You find him leaving his house by the back door, where Mrs. Churchill saw him, probably, although it may not have been the occasion of his leaving. We certainly find him down at his accustomed place in the bank that had honored him by making him its president, at his usual hour of 9:30. We find him going on from this to the other bank that honored him by making him a trustee, a little later in the day. The malice was all before this fact. The wickedness was all before the fourth day of August. The ingratitude, the poisoning, the hate, the stabbing of the mind, which is worse than the stabbing of the body, had gone on under that roof for many, many moons. All we know is that there was a jealousy which was unworthy of that woman. All we know is that, as Emma expressed it herself, they felt that he was not interested in them and no step could be taken by that poor man, no suggestion could be made by that poor man, that would not fan the embers of that discontent into the active fires of hatred that we have seen, alas, too many times manifested in many an unhappy home. I speak of these things, Mr. Foreman, at this time because I have left the dead body of that aged woman lying upon the guest chamber floor, in the room where she was last at work, and am asking you to come down with me to a far sadder tragedy, to the most horrible word that the English language knows, to a parricide. I do not undertake, far be it from me to seek to detract one iota from the terrible significance of that word; and when I am asked to fight and prove and declare and explain a motive for that act, well may my feeble powers quail at the undertaking.
There may be that in this case which saves us from the idea that Lizzie Borden planned to kill her father. I hope she did not. But Lizzie Andrew Borden, the daughter of Andrew Jackson Borden, never came down those stairs. It was not Lizzie Andrew Borden, the daughter of Andrew Jackson Borden, that came down those stairs, but a murderess, transformed from all the thirty-three years of an honest life, transformed from the daughter, transformed from the ties of affections to the most consummate criminal we have read of in all our history or works of fiction. She came down to meet that stern old man. His picture shows that, if nothing more, even in death. That just old man, of the stern puritan stock, that most of you are from, gentlemen, that man who loved his daughters, but who also loved his wife, as the Bible commanded him to. And, above all, the one man in all this universe who would know who killed his wife. She had not thought of that. She had gone on. There is cunning in crime, but there is blindness in crime, too. She had gone on with stealth and cunning, but she had forgotten the hereafter. They always do. And when the deed was done she was coming downstairs to face Nemesis. There wouldn’t be any question of what he would know of the reason why that woman lay in death. He knew who disliked her. He knew who could not tolerate her presence under the roof. He knew the discussion which had led up to the pitch of frenzy which resulted in her death, and she didn’t dare to let him live, father though he was, and bound to her by every tie of affection. It is the melancholy, the inevitable attribute of crime that it is the necessary and fruitful parent of crime. He moved slowly. He went to the back door, as was his custom, but nobody was there to open it, and so he went around to the front door, as very likely he often did, supposing, of course, that he could gain entrance, as any man does into his own house in the day time, by the use of a spring lock. We have heard something about the noise and confusion of that street, but Bridget’s ears, which are no quicker than Lizzie’s, heard him as he put the key into the lock, and came to the door and let him in. He came in and passed into the dining room, because she was, I presume, working in the sitting room, took off his coat and sat down and replaced it with a cardigan jacket and down came Lizzie from the very place where Mrs. Borden lay dead and told him what we cannot believe to be true about where his wife was. I am told, gentlemen, that circumstances are to be regarded with suspicion. Mr. Foreman, a falsehood that goes right to the very vitals of crime is not a circumstance; it is proof. Where was that mother? She knew. She told what never was true. That would pass off for awhile; that would keep the old man quiet for a time, but it would not last.
ATTORNEY GENERAL PILLSBURY.
She took out her ironing-board. Why had she not been ironing in the cellar part of the house. Mr. Foreman, we do not know. She had no duties around the household, so Emma tells us. There was nothing for her to do. Bridget goes into the dining room. Having finished her windows in the sitting room, it took only a moment to go inside. Comes into the dining room to wash the windows and the old gentleman comes down from his room and goes into the sitting room and sits down. She suggests to him, with the spirit in which Judas kissed his master, that, as he is weary with his day’s work, it would be well for him to lie down upon the sofa and rest. Then she goes into the dining room again, gets her ironing board, and proceeds to iron her handkerchiefs. Bridget finishes her work. She tells Bridget, and that is the first time that Bridget heard it directly, as I stated to you yesterday, that if she goes out that afternoon to be sure to lock the doors, because Mrs. Borden had gone out on a sick call. And she says: “Miss Lizzie, who is sick?” Miss Lizzie replies: “I don’t know, but it must be in town, for she had a note this morning.” She never did, and Bridget goes upstairs to take her little rest and leaves this woman ironing those handkerchiefs nearer to her father as he lay on that sofa than my distinguished friend is to me, at this moment. Again she was alone with her victim. O, unfortunate combination of circumstances, always. Again she is alone in the house with the man who was found murdered. It may be safely said to be less than twenty minutes from that time she calls Bridget down stairs and tells her that her father is killed. There is another straw, Mr. Foreman, another chip on the surface, not floating in an eddy, but always out in the middle of the currant, that tells us with irresistible distinctness of what happened after Bridget went upstairs. She had a good fire to iron the clothes with. Why do I say that? I will not speak without the evidence if I can help it. Officer Harrington comes along, takes a car that reaches city hall at 12:15, goes along Main street, goes to the house, talks with Lizzie, and, last of all, takes the cover off the stove and sees there, and I will read his own words: “The fire was near extinguished; on the end there was a little fire, I should judge about as large as the palm of my hand. The embers were about dying.” That was as early as 12:30. I need not say to you that if there was fire enough to be seen at 12:30 there was fire enough to work with an hour and a half before 11 o’clock. There was fire enough. There is no trouble on that account. It was a little job she had to do, nine handkerchiefs at the outside, perhaps eight or seven, and when this thing is over Miss Russell gets the handkerchiefs and takes them upstairs, where we find a fatal thing, we find that four or five, I give the exact words of those handkerchiefs: “Are ironed and two or three are sprinkled ready to iron.” Whatever else is true, she had begun her work before Bridget went upstairs, she was engaged in it when Bridget left her. It was a job that could not have taken her any more than ten minutes at the outside, if I may use the common expression of mankind in that sort of work, and the clock of Lizzie’s course of life stopped the instant Bridget left the room. What for? What for, gentlemen? It would have taken but a minute or so to finish them. The day was well gone, the dinner hour was approaching. There were four or five to take away and but two or three to finish, and in less time than I am speaking it would have been done.
It is terribly significant. There is that in this case which is far deeper than these accidental variations. She says to Bridget, not to an officer, “I was out in the back yard and heard a groan, and came in and the screen door was wide open,” I may have occasion to say that that story was not true either, and was not consistent with any other story that she told. Dr. Bowen came next, I believe. He says, “Where have you been?” O, pregnant question that nobody could fail to ask. “In the barn looking for some irons or iron,” she answers. Mrs. Churchill came next—I may not have the order right—and that honest woman asked it the first thing, “Where were you when it happened, Lizzie?” “I went to the barn to get a piece of iron.” Miss Russell heard the remark. She does not distinctly remember asking it, and she is her friend: “What did you go to the barn for, Lizzie?” “I went to get a piece of tin or iron to fix my screen.” And Mr. Fleet came in, and politely, as you may believe, courteously, as you are glad to think, he talked to her about that important question of where she was when this thing happened. Let me read it word for word, for it is vital and significant and Mr. Buck will not say that one word of it is misconstrued or misremembered or falsely stated. He asked her if she knew anything about the murders. “She said that she did not, all she knew was that her father came home about 10:30 or 10:45, went into the sitting room, sat down in a large chair, took out some papers and looked at them. She was ironing in the dining room some handkerchiefs, as she stated. She saw that her father was feeble, and she went to him and advised and assisted him to lie down upon the sofa. She then went into the dining room to her ironing, but left after her father was lain down, and went out into the yard and went up in the barn. I asked her how long she remained in the barn; she said she remained in the barn about half an hour. I then asked her what she meant by ‘up in the barn.’ She said, ‘I mean up in the barn, upstairs, sir.’ She said after she had been up there about half an hour she came down again, went into the house and found her father lying on the lounge.” Mr. Foreman and gentlemen, we must judge all facts, all circumstances as they appeal to your common sense. There is no other test; there is no other duty; there is no other way of arriving at justice, and tried by that standard I assert that that story is simply incredible. I assert that that story is simply absurd. I assert that that story is not within the bounds of reasonable possibilities.
That is not all. Saturday again the mayor of the city, who I assume is a gentleman, whom I know you will believe to be one, and Marshal Hilliard, who has answered by his dignified and courteous and wholly respectable presence all the slanders you have heard about him in his simple and unaffected way of testifying in this case, which is refutation enough of all the wicked things that have been said of him—that men came there Saturday evening, and again incidentally that story was referred to. She told her friend Alice that she went to get a piece of iron to fix her screen. She told them that she went out into the barn to get some sinkers. It is not so much the contradiction I call your attention to, for I want to be entirely fair, for both errands might have been in her mind.
Why could we not have had somebody to have told us what was the screen that needed fixing, and to have corroborated that story by finding the piece of iron that was put into the screen when she was left alone and when she came back in her fright. Show us the fish line that these sinkers went on. It was easy to do if they were in existence, if there was any truth in the story. Show us something by which we can verify this ferocious fact, that the alibi she was driven to put for herself is a good one. I will spend a little time in the prosecution of this argument to discuss Mr. Lubinsky. What he saw and when he saw it are absolutely indefinite. Let me treat him with entire fairness and justice. To begin with, he is a discarded witness. He went with his story first to Wilkinson and then to Mr. Mullaly and then to Mr. Phillips before the hearing in the district court. Mr. Mullaly tells you just what he told him. He saw Mr. Mullaly and told him it was about half past 10 when he went by and saw somebody coming from the barn. That was on the 8th day of August. About two weeks after the time—I do not need the record, for I remember it as though it was yesterday—about two weeks after that time he told Mr. Phillips. Yes, it would be the 22d of August. This hearing ran through the 24th, 25th, 26th, 27th, and into the first day of September. He told a reporter, and I presume it was published, although I do not know about that. I won’t say that, for I don’t know. Mr. Phillips was present there in court; witnesses were called for the defense, and Lubinsky was not called. He had not got things patched up. And I want to know in this connection what was the necessity of having that line drawn so carefully by the surveyor across the plan of the first day. What has been the significance of that thing by which it was made to appear that a surveyor could find a line clear from a point on the street to the barn door? And you were asked to squint across there. You saw that you could not see the fraction of a rabbit that came out of that barn door. Has that any connection with the first attempt at Lubinsky? I do not know. It is one of those things they have started and have flashed in the pan. Medley was the first one there. He got the news before 11:30. He took a team that was coming up the street, and drove as fast as he could drive it. He went to the station house and got the men, started for the Borden house, and as he went by the city hall clock it was nineteen or twenty minutes before 12. He went there; he went into the house. He saw Miss Borden. He came out and went into the barn. Other men did the same thing. It occurred to many, he went there first because he was the one that found the door shut, and the others, excepting these wonderful boy detectives, found it open. All the contradiction of Medley is an attempt to contradict him about time. Something has been said, Mr. Foreman and gentlemen, as to the conduct of the defendant during this trying time. In my desire to say no word that is not borne out by the exact facts, I forbear to criticise or to ask you to consider against her her general demeanor after this tragedy. I quite agree for once with my distinguished friend in his suggestion that the absence of tears, that the icy demeanor may have either meant consciousness of guilt or consciousness of loss.
I would not lift the weight of my finger to urge that this woman remarkable though she is, nervy as she is, brave as she is, cool as she is, should be condemned because grief, it may have been, but for other things in the case, drove back the tears to their source and forbade her to show the emotions that belong to the sex. But there are some things that are pregnant. My distinguished friend tells of the frequency of presentiments. They are frequent in the storybooks, Mr. Foreman. If they occur in real life they are usually thought of afterward. Did you ever hear one expressed beforehand? Tell me that this woman was physically incapable of that deed? My distinguished friend has not read female character enough to know that when a woman dares she dares, and when she will she will, and that given a woman that has that absolute command of herself who told Mrs. Reagan even, that the failure to break that egg was the first time she had ever failed in anything she undertook, a woman whose courage surpassed that of any man I am talking to, I very humbly believe—tell me that she is physically incapable of this act? But those are trifles, Mr. Foreman. Those are trifles. Those are little chips that do not perhaps directly indicate which way the current flows. But there is more in the case than that. Of course the question arises to one’s lips. How could she have avoided the spattering of her dress with blood if she was the author of these crimes? As to the first crime, it is scarcely necessary to attempt to answer the question. In the solitude of that house, with ample fire in the stove, with ample wit of woman nobody has suggested that as to the first crime there was not ample opportunity, ample means and that nothing could be suggested as a reason why all the evidence of that crime could not have been amply and successfully concealed. But as to the second murder the question is one of more difficulty. I cannot answer it. You cannot answer it. You are neither murderers nor women. You have neither the craft of the assassin nor the cunning and deftness of the sex. There are some things, however, in the case that we know, and one of them is, and perhaps one of the pregnant facts in the case is, that when the officers had completed their search, and in good faith had asked her to produce the dress she was wearing that morning, they were fooled with that garment which lies on that trunk, which was not upon her when any human being saw her. That is a pretty bold assertion. Let us see what the evidence of it is, because as to that matter the evidence is contradictory, and it is the first proposition, I believe that I have addressed touching which there is even an attempt to show contradictory evidence. I have trod on ground on which no attempt has been made to block the ordinary course of reasoning, and I now approach the first subject in which there is any attempt to show contradiction, and it turns out to be no contradiction whatever. This dress has been described to you as a silk dress and dark blue evidently, a dress with a figure which is not at all like a diamond, a dress which is not cheap, a dress which would not be worn in ironing by any prudent woman, of course not. It is an afternoon dress. Do your wives dress in silk when they go down in the kitchen to work, and in their household duties in the morning before dinner? But I am not compelled to stay at suppositions of reasoning: I come to facts. There was one woman in this world who saw Lizzie Borden after these murders were done, and when she saw her did not suspect that murder had been done.
Who was that? It was that clear, intelligent, honest daughter of one of Fall River’s most honored citizens, Adelaide Churchill. Everybody else saw her when they knew murder had been done. Addie Churchill saw her when the most she suspected was that somebody had become sick again. She describes the dress she had on that morning. I will read it, word for word, to you, because it is vital: “It looked like a light blue and white ground work; it seemed like calico or cambric, and it had a light blue and white ground work with a navy blue diamond printed on it.” Was the whole dress alike, the skirt and waist? It looked so to me. Was that the dress she had on this morning (showing dark blue dress?) She did not wish to harm a hair of Lizzie’s head. She was her neighbor and her friend, and she would avoid it if she could. But she answered, “It does not look like it.” Mr. Moody puts it again: “Was it, was it?” Ah, Addie Churchill will have to give an answer which will convict this woman of putting up a dress which is not the one she wore. She is no police detective conspiring against her life, but her next door neighbor, her friend, and her friend to-day. When Mr. Moody puts the straight question to her: “Was it?” she answers: “That is not the dress I have described.” Still it is not quite close enough. My learned friend wants it answered more closely, and asks, “Was it the dress she had on?” Mrs. Churchill can avoid answering no longer, and she says, “I did not see her with it on that morning.” She further describes the dress as having the ground work of a color “like blue and white mixed.” It is not the testimony of one who wants her convicted. I may well believe, I am glad to believe, although I know nothing of it, that it is the testimony of one who would rejoice if she were not convicted. Now comes another witness, who I believe would cut his heart strings before he would say a word against that woman if he could help it, and that is her physician and friend, Dr. Seabury W. Bowen, who away back in the early stages of this case gave testimony, and the testimony is all the more valuable because it comes from her intimate friend, and was given at a time when it was not supposed there was ever to be any discussion about it. He undertakes to describe the dress. Do you remember how Lizzie was dressed that morning? “It is pretty hard work for me. Probably if I could see a dress something like it I could guess, but I could not describe it; it was a sort of drab, not much color to it to attract my attention—a sort of morning calico dress, I should judge.” That is not all. The morning dress she had worn many times, as Miss Emma is obliged to say, poor girl. She put it in her testimony (she wanted to help her sister) that it was very early in the morning. Oh, unfortunate expression. Did you ever know a girl to change her dress twice a morning, ever in the world? It was a morning dress, and the day before the tragedy happened Bridget tells us that that cheap morning dress, light blue with a dark figure, Wednesday morning the dress she had on was of that description, and it was this very bedford cord. Undoubtedly. She never wore it afterward. Friday she has on this dress. Saturday she has on this dress, mornings and afternoon. It is good enough for her to wear then. Perhaps there is not any distinction of morning and afternoon then in that house of the dead. We have had evidence of the character of the search that was made in the house. It can, perhaps, all be well summed up in the suggestion that the search of Thursday was perfunctory, insufficient and indecisive. It was with no particular definite aim in view. It was absolutely without any idea that the inmates of the house knew of this crime. It was that sort of a search which goes through and does not see what it ought to see. But it was enough to set them on their guard. There was in that house somewhere a bedford cord dress. That bedford cord dress had been stained with paint. I welcome that fact. My learned associate never said it had not been stained with paint. I believe it had. No, I ought not to say that. I hope, I may be corrected if I say that I believe it at any time. There is no assertion or pretence that it had not been stained with paint. It had not stopped the wearing of it, though.
It was good enough for a morning dress, good enough for an ironing dress, good enough for a chore dress around the house in the morning. But the Thursday’s search had put them on their guard, and when, Saturday afternoon, the officers came there, they were prepared for the most absolutely thorough search that could be made in that house. Where was that paint stained bedford cord? Where was that dress with paint spots on it, so thickly covering it that it was not fit to wear any more? Where was it that the officers did not see it? Emma alone can tell us, and Emma tries to tell us that it was in that closet. Emma says that Saturday night she saw that dress upon the hook, and said to Lizzie “You’d better destroy this dress,” and Lizzie said she would. Nobody heard that conversation but Lizzie and Emma. So we cannot contradict their words excepting by what followed. Mark the exact use of language. Alice Russell said that when she came down stairs that morning she went into the kitchen and Lizzie stood by the stove with a dress skirt in her hand and a waist on the shelf near by, and Emma turned round and said to her, “Lizzie, what are you going to do?” “I am going to burn this old thing up. It is all covered with paint.” There is scarcely a fact that is not incriminating against Lizzie. Mrs. Reagan has come on the stand and told upon her oath against a woman who is her friend, with whom she had no difficulties and who is of her own sex, against whom she can have no object of resentment or hatred, as to induce her to commit the foulest of crimes, has told a story which is extremely significant. I should have hesitated to express myself as to its significance were it not for the attestation of that fact by the agitation, the hurrying and scurrying, the extraordinary efforts put forth by her friends as soon as it was unadvisedly published to suppress and deny it. They saw its significance, they are unwilling witnesses to the character of the story and the way it bears upon the case. That thing took place. Mrs. Reagan has appeared before you and you are to judge whether you like her looks or not. You are to be judges of her evidence. Miss Emma, who knew what took place, never came to Mrs. Reagan, and said, “You have told a lie!” They were the ones to have denied it. They were the ones to have asked her to take it back. Miss Emma was in there the next day after the publication, and she never found it out in her heart to say to Mrs. Reagan: “Why, Mrs. Reagan, you have published an infamous and wicked lie about us!” It was these same self-constituted friends who have filled the newspapers with denunciations of delay in a trial of this cause because the appointed officer was lying sick at his home and could not attend to it, when the courteous and accomplished gentlemen, who had her interests in charge, my learned friends never complained and do not to this day complain, to their credit be it said.
I had intended, Mr. Foreman and gentlemen, at this point, to attempt to recapitulate these things to you. I do not think I will do it. If I have not made them plain they cannot be made plainer. Every one of them excepting the incident of the burning of the dress and the accuracy of the witnesses as to the dress that is produced, depend upon facts that there is no denial of. We find a woman murdered by blows which were struck with a weak and indecisive hand. We find that that woman had no enemies in all the world excepting the daughter that had repudiated her. We find that that woman was killed at half past nine, when it passes the bounds of human credulity to believe that it could have been done without her knowledge, her presence, her sight, her hearing. We find a house guarded by night and by day so that no assassin could find lodgment in it for a moment. We find that after that body had been murdered a falsehood of the very essence of this whole case is told by that girl to explain the story to the father, who would revenge it and delay him from looking for her. We find her then set in her purpose turned into a mania, so far as responsibility is concerned, considering the question of what to do with this witness who could tell everything of that skeleton if he saw fit. He had not always told all he knew. He had forbidden telling of that burglary of Mrs. Borden’s things for reasons that I do not know anything about, but which I presume were satisfactory to him, but he would not have so suppressed or concealed this tragedy, and so the devil came to her as God grant it may never come to you or me, but it may. When the old man lay sleeping she was prompted to cover her person in some imperfect way and remove him from life and conceal the evidences, so far as she could in the hurried time that was left her. She did not call Maggie until she got ready. She had fifteen minutes, which is a long time, and then called her down, and without helping the officers in one single thing, but remonstrating with them for going into her room and asking her questions—those servants of the law who were trying to favor her, never opening her mouth except to tell the story of the barn, and then a story of the note, which is all she ever told in the world. We find that woman in a house where is found in the cellar a hatchet which answers every requirement of this case, where no outside assassin could have concealed it, and where she alone could have put it. We find in that house a dress which was concealed from the officers until it was found that the search was to be resumed and safety was not longer assured. The dress was hidden from public gaze by the most extraordinary act of burning that you ever heard of in all your lives by an innocent person.
We say these things float on the great current of our thought and tell just where the stream leads to. We get down now to the elements of ordinary crime. We get hatred, we get malice, we get falsehood about the position and disposition of the body. We get absurd and impossible alibis. We get contradictory stories that are not attempted to be verified. We get fraud upon the officers by the substitution of an afternoon silk dress as the one that she was wearing that morning ironing, and capping the climax by the production of evidence that is beyond all question, that there was a guilty destruction of the dress that she feared the eye of the microscope might find the blood upon. What is the defense, Mr. Foreman? What is the answer to this array of impregnable facts? Nothing, nothing. I stop and think, and I say again, nothing. Some dust thrown upon the story of Mrs. Reagan which is not of the essence of the case, some question about time put upon the acts of Mr. Medley which is not of the essence of the case; some absurd and trifling stories about drunken men the night before and dogs in the yard the night before. Of men standing quietly on the street the same day of the tragedy, exposing their bloody persons for the inspection of passersby, of a pale, irresolute man walking up the street in broad daylight. Nothing, nothing. The distinguished counsel, with all his eloquence, which I can’t hope to match or approach, has attempted nothing but to say, “Not proven.” But it is proven; it is proven. We cannot measure facts, Mr. Foreman. We cannot put a yardstick to them. We cannot determine the length and breadth and the thickness of them. There is only one test of facts. Do they lead us to firm belief? if they do they have done the only duty they are capable of. You cannot measure the light that shines about you; you cannot weigh it, but we know when it is light because it shines into our hearts and eyes. That is all there is to this question of reasonable doubt. Give the prisoner every vestige of benefit of it. The last question to be answered is taken from these facts together. Are you satisfied that it was done by her? I have attempted, Mr. Foreman, how imperfectly none but myself can say, to discharge the sad duty which has devolved upon me.
He who could have charmed and entertained and inspired you is still detained by sickness, and it has fallen to my lot to fill unworthily the place of the chief lawgiver of this commonwealth. But I submit these facts to you with the confidence that you are men of courage and truth. I have no other suggestion to make to you than that you shall deal with them with that courage that befits sons of Massachusetts. I do not put it on so low a ground as to ask you to avenge these horrid deaths. O, no, I do not put it even on the ground of asking you to do credit to the good old commonwealth of Massachusetts. I lift you higher than that, gentlemen. I advance you to the altitude of the conscience that must be the final master of us all. You are merciful men. The wells of mercy, I hope, are not dried up in any of us. But this is not the time nor the place for the exercise of it. That mighty prerogative of mercy is not absent from the jurisprudence of this glorious old commonwealth. It is vested in magistrates, one of the most conspicuous of whom was the honored gentleman who has addressed you before me, and to whom no appeal for mercy ever fell upon harsh or unwilling ears. Let mercy be taken care of by those to whom you have intrusted the quality of mercy. It is not strained in the commonwealth of Massachusetts. It is not for us to discuss that. It is for us to answer questions, the responsibility of which is not with you nor with me. We neither made these laws, nor do we execute them. We are responsible only for the justice, the courage, the ability with which we meet to find an answer to the truth. Rise, gentlemen, rise to the altitude of your duty. Act as as you would act when you stand before the great white throne at the last day. What shall be your reward? The ineffable consciousness of duty done. There is no strait so hard, there is no affliction so bitter, that it is not made light and easy by the consciousness that in times of trial you have done your duty and your whole duty. There is no applause of the world, there is no station of hight, there is no seduction of fame that can compensate for the gnawings of an outraged conscience. Only he who hears the voice of his inner consciousness, it is the voice of God himself saying to him “Well done, good and faithful servant,” can enter into the reward and lay hold of eternal life.
The chief justice addressed the prisoner as follows: Lizzie Andrew Borden—Although you have now been fully heard by counsel, it is your privilege to add any word which you may desire to say in person to the jury. You now have that opportunity.
The prisoner arose and responded: “I am innocent. I leave it to my counsel to speak for me.” The charge to the jury was then delivered by Mr. Justice Dewey, as follows:
Mr. Foreman and Gentlemen of the Jury—You have listened with attention to the evidence in this case, and to the arguments of the defendant’s counsel and of the district attorney. It now remains for me, acting in behalf of the court, to give you such aid towards a proper performance of your duty as I may be able to give within the limits for judicial action prescribed by law; and, to prevent any erroneous impression, it may be well for me to bring to your attention, at the outset, that it is provided by a statute of this state that the court shall not charge juries with respect to matters of fact, but may state the testimony and the law.
I understand the government to concede that defendant’s character has been good: that it has not been merely a negative and natural one that nobody had heard anything against, but one of positive, of active benevolence in religious and charitable work. The question is whether the defendant, being such as she was, did the acts charged upon her. You are not inquiring into the action of some imaginary being, but into the actions of a real person, the defendant, with her character, with her habits, with her education, with her ways of life, as they have been disclosed in the case. Judging of this subject as reasonable men, you have the right to take into consideration her character such as is admitted or apparent. In some cases it may not be esteemed of much importance. In other cases it may raise a reasonable doubt of a defendant’s guilt even in the face of strongly criminating circumstances. What shall be its effect here rests in your reasonable discretion. I understand the counsel for the government to claim that defendant had towards her stepmother a strong feeling of illwill, nearly if not quite amounting to hatred. And Mrs. Gifford’s testimony as to a conversation with defendant in the early spring of 1892 is relied upon largely as a basis for that claim, supplemented by whatever evidence there is as to defendant’s conduct towards her stepmother. Now, gentlemen, in judging wisely of a case you need to keep all parts of it in their natural and proper proportion, and not put on any particular piece of evidence a greater weight than it will reasonably bear, and not to magnify or intensify or depreciate and belittle any piece of evidence to meet an emergency. I shall say something before I have done on the caution to be used in considering testimony as to conversations. But take Mrs. Gifford’s just as she gave it, and consider whether or not it will fairly amount to the significance attached to it, remembering that it is the language of a young woman and not of a philosopher or a jurist.
What, according to common observation, is the habit of young women in the use of language? Is it not rather that of intense expression, whether that of admiration or dislike? Consider whether or not they do not often use words which, strictly taken, would go far beyond their real meaning. What you wish, of course, is a true conception of the state of the mind of the defendant towards her stepmother, not years ago, but later and nearer the time of the homicide, and to get such a true conception you must not separate Mrs. Gifford’s testimony from all the rest, but consider also the evidence as to how they lived in the family, whether as Mrs. Raymond, I believe, said, they sewed together on each other’s dresses, whether they went to church together, sat together, returned together, in a word, the general tenor of their life. You will particularly recall the testimony of Bridget Sullivan and of defendant’s sister Emma bearing on the same subject. Weigh carefully all the testimony on the subject, in connection with the suggestions of counsel, and then judge whether or not there is clearly proved such a permanent state of mind on the part of defendant toward her stepmother as to justify you in drawing against her upon that ground inferences unfavorable to her innocence. The law requires that before a defendant can be found guilty upon either count in the indictment every material allegation in it shall be proved beyond a reasonable doubt.
Now you observe, gentlemen, that the government submits this case to you upon circumstantial evidence. No witness testifies to seeing the defendant in the act of doing the crime charged, but the government seeks to establish by proof a body of facts and circumstances from which you are asked to infer or conclude that the defendant killed Mr. and Mrs. Borden. This is a legal and not unusual way of proving a criminal case, and it is clearly competent for a jury to find a person guilty of murder upon circumstantial evidence alone. Then, after you have determined what specific facts are proved, you have remaining the important duty of deciding whether or not you are justified in drawing, and will draw, from those facts the conclusion of guilt. Here, therefore, is a two-fold liability to error, first, in deciding upon the evidence what facts are proved, and second, in deciding what inference or conclusion shall be drawn from the facts. This is often the critical or turning point in a case resting on circumstantial evidence. The law warrants you in acting firmly and with confidence on such evidence, but does require you to exercise a deliberate and sober judgment, and use great caution not to form a hasty or erroneous conclusion. You are allowed to deal with this matter with your minds untrammeled by any artificial or arbitrary rule of law. As a great judge has said: “The common law appeals to the plain dictates of common experience and sound judgment.”
In other words, failure to prove a fact essential to the conclusion of guilt, and without which that conclusion would not be reached, is fatal to the government’s case, but failure to prove a helpful but not an essential fact may not be fatal. Take an essential fact. All would admit that the necessity of establishing the presence of the defendant in the house, when, for instance, her father was killed, is a necessary fact. The government could not expect that you would find her guilty of the murder of her father by her own hand unless you are satisfied that she was where he was when he was murdered. And if the evidence left you in reasonable doubt as to that fact, so vital, so absolutely essential, the government must fail of its case, whatever may be the force and significance of other facts, that is, so far as it is claimed that she did the murder with her own hands. The question of the relation of this handleless hatchet to the murder. It may have an important bearing upon the case, upon your judgment of the relations of the defendant to these crimes, whether the crime was done by that particular hatchet or not, but it cannot be said, and is not claimed by the government, that it bears the same essential and necessary relation to the case that the matter of her presence in the house does. It is not claimed by the government but what that killing might have been done with some other instrument. I understand the government to claim substantially that the alleged fact that the defendant made a false statement in regard to her stepmother’s having received a note or letter that morning bears an essential relation to the case, bears the relation of an essential fact, not merely the relation of a useful fact. And so the counsel, in his opening, referring to that matter, charged deliberately upon the defendant that she had told a falsehood in regard to that note. In other words, that she had made statements about it which she knew at the time of making them were untrue, and the learned district attorney, in his closing argument, adopts and reaffirms that charge against the defendant. Now what are the grounds on which the government claims that that charge is false, knowingly false? There are three, as I understand them. First, that the one who wrote it has not been found: second, that the party who brought it has not been found, and third, that no letter has been found. And substantially, if I understand the position correctly, upon those three grounds you are asked to find that an essential fact, a deliberate falsehood on the part of the defendant, has been established. Now what answer or reply is made to this charge? First, that the defendant had time to think of it; she was not put in a position upon the evidence where she was compelled to make that statement without an opportunity for reflection. If as the government claims, she had killed her stepmother some little time before, she had a period in which she could turn over the matter in her mind. She must naturally anticipate, if she knew the facts, that the question at no remote period would be asked her where Mrs. Borden was, or if she knew where she was. She might reasonably and naturally expect that that question would arise. Again, it would be urged in her behalf, what motive had she to invent a story like this? What motive? Would it not have answered every purpose to have her say, and would it not have been more natural for her to say simply that her stepmother had gone out on an errand or to make a call? What motive had she to take upon herself the responsibility of giving utterance to this distinct and independent fact of a letter or note received, with which she might be confronted and which she might afterwards find it difficult to explain, if she knew that no such thing was true? Was it a natural thing to say, situated as they were, living as they were, living as they did, taking the general tenor of their ordinary life, was it a natural thing for her to invent? But it is said no letter was found. Suppose you look at the case for a moment from her standpoint, contemplate the possibility of there being another assassin than herself, might it not be a part of the plan or scheme of such a person by such a document or paper to withdraw Mrs. Borden from the house? If he afterward came in there, came upon her, killed her, might he not have found the letter or note with her, if there was one already in the room. Might he not have a reasonable and natural wish to remove that as one possible link in tracing himself? Taking the suggestions on the one side and the other, judging the matter fairly, not assuming beforehand that the defendant is guilty does the evidence satisfy you as reasonable men, beyond any reasonable doubt, that these statements of the defendant in regard to that note must necessarily be false.
However numerous may be the facts in the government’s process of proof tending to show defendant’s guilt, yet if there is a fact established—whether in that line of proof or outside of it—which cannot reasonably be reconciled with her guilt, then guilt cannot be said to be established. In order to warrant a conviction on circumstantial evidence it is not necessary for the government to show that by no possibility was it in the power of any other person than the defendant to commit the crimes; but the evidence must be such as to produce a conviction amounting to a reasonable and moral certainty that the defendant and no one else did commit them. The government claims that you should be satisfied upon the evidence that the defendant was so situated that she had an opportunity to perpetrate both the crimes charged upon her. Whether this claim is sustained is for your judgment. By itself alone, the fact, if shown, that the defendant had the opportunity to commit the crimes, would not justify a conviction; but this fact, if established, becomes a matter for your consideration in connection with the other evidence. When was Mrs. Borden killed? At what time was Mr. Borden killed? Did the same person kill both of them? Was defendant in the house when Mrs. Borden was killed? Was she in the house when Mr. Borden was killed? Gentlemen, something has been said to you by counsel as to defendant’s not testifying. I must speak to you on this subject. The constitution of our State, in its bill of rights, provides that: “No subject shall be compelled to secure or furnish evidence against himself.” By the common law persons on trial for crime have no right to testify in their own defense. We have now a statute in these words: “In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offences, a person so charged shall, at his own request, but not otherwise, be deemed a competent witness; and his neglect or refusal to testify shall not create any presumption against him.” You will notice that guarded language of the statute. It recognizes and affirms the common law rule that the defendant in a criminal prosecution is an incompetent witness for himself, but it provides that on one condition only, namely, his own request, he shall be deemed competent. Till that request is made he remains incompetent. In this case the defendant has made no such request, and she stands before you, therefore, as a witness incompetent, and it is clearly your duty to consider this case and form your judgment upon it as if the defendant had no right whatever to testify. The Superior Court, speaking of a defendant’s right and protection under the constitution and statutes, uses these words: “Nor can any inference be drawn against him from his failure to testify.” Therefore I say to you, and I mean all that my words express, any argument, any implication, any suggestion, any consideration in your minds unfavorable to defendant, based on her failure to testify, is unwarranted in law. Nor is defendant called upon to offer any explanation of her neglect to testify. If she were required to explain, others might think the explanation insufficient. Then she would lose the protection of the statute. It is a matter which the law submits to her own discretion, and to that alone. The defendant may say: “I have already told to the officers all that I know about this case, and my statements have been put in evidence. Whatever is mysterious to others is also a mystery to me. I have no knowledge more than others have. I have never professed to be able to explain how or by whom these homicides were committed.” There is another reason why defendant might not wish to testify. Now she is sacredly guarded by the law from all unfavorable inferences drawn from her silence. If she testifies she becomes a witness, with less than the privileges of an ordinary witness. She is subject to cross-examination. She may be asked questions that are legally competent, which she is not able to answer, or she may answer questions truly, and yet it may be argued against her that her answers were untrue, and her neglect to answer perverse. Being a party she is exposed to peculiar danger of having her conduct on the stand and her testimony severely scrutinized and perhaps misjudged, of having her evidence claimed to be of little weight, if favorable to herself, and of great weight so far as any part of it shall admit of an adverse construction. She is left free, therefore, to avoid such risks.
If, proceeding with due caution, and observant of the principles which have been stated, you are convinced beyond reasonable doubt of the defendant’s guilt, it will be your plain duty to declare that conviction by your verdict. If the evidence falls short of producing such conviction in your mind, although it may raise a suspicion of guilt, or even a strong probability of guilt, it would be your plain duty to return a verdict of not guilty. If not legally proved to be guilty, the defendant is entitled to a verdict of not guilty. Then take the matter of Mrs. Reagan’s testimony. It is suggested that there has been no denial of that testimony, or, rather, that the persons who busied themselves about getting the certificate from Mrs. Reagan had no denial of it. Mr. Knowlton; “Not by me, sir. I admit it.” Judge Dewey; “Admit what?” Mr. Knowlton; “That she did deny it.” Judge Dewey; “Mrs. Reagan?” Mr. Knowlton; “Yes, sir.” Judge Dewey; “O, no doubt about that. It is not claimed that Mrs. Reagan does not deny it. But I say it is suggested that the parties who represented the defendant in the matter, and who were seeking to get a certificate from Mrs. Reagan were proceeding without having received any authority to get the certificate, and without having had any assurance from anybody that the statement was false and one that ought to be denied. You have heard the statement of Miss Emma about it here; and it would be for you to judge as reasonable men, whether such men as Mr. Holmes and the clergymen and the other parties who were interesting themselves in that matter, started off attempting to get a certificate from Mrs. Reagan contradicting that report without first having taken any steps to satisfy themselves that it was a report that ought to be contradicted. Gentlemen, I know not what views you may take of the case, but it is the gravest importance that it should be decided. If decided at all, it must be decided by a jury. I know of no reason to expect that any other jury could be supplied with more evidence or be better assisted by the efforts of counsel. The case on both sides has been conducted by counsel with great fairness, industry and ability. The law requires that the jury shall be unanimous in their verdict, and it is their duty to agree if they can conscientiously do so. And now, gentlemen, the case is committed into your hands, the tragedy which has given to this investigation such widespread interest and deeply excited public attention and feeling. The press has ministered to this excitement by publishing, without moderation, rumors and reports of all kinds. This makes it difficult to secure a trial free from prejudice. You have doubtless read, previous to the trial, more or less of the accounts and discussions in the newspapers. You must guard, so far as possible, against all impressions derived from having read in the newspapers accounts relating to the question you have now to decide. You cannot, consistently with your duty, go into discussion of those accounts in any way. Use evidence only, for the discovery of the facts, and any other course would be contrary to your duty. And, entering on your deliberations with no pride of opinion, with impartial and thoughtful minds, seeking only for the truth, you will lift the case above the range of passion and prejudice and excited feeling, into the clear atmosphere of reason and law. If you shall be able to do this, we can hope that, in some high sense, this trial may be adopted into the order of providence, and may express in its results somewhat of that justice with which God governs the world.”
The jury retired to its room and remained one hour and ten minutes.
The jurors having answered to their names, the clerk said: Lizzie Andrew Borden, stand up.
The prisoner arose.
The clerk—Gentlemen of the jury, have you agreed upon your verdict?
The foreman—We have.
The clerk—Please return the papers to the court.
The officer returned the papers to the clerk.
The clerk—Lizzie Andrew Borden, hold up your right hand. Mr. Foreman, look upon the prisoner; prisoner, look upon the foreman. What say you, Mr. Foreman.
The foreman (interrupting)—Not Guilty.
There was an outburst of applause from the spectators which was at once checked by the officers. The prisoner dropped into her seat.
The clerk—Gentlemen of the jury, you upon your oaths do say that Lizzie Andrew Borden, the prisoner at the bar, is not guilty?
Several jurors—We do.
The clerk—So say you, Mr. Foreman; so say all of you, gentlemen?
The foreman—We do.
Mr. Knowlton—May it please the court. There are pending two indictments against the same defendant, one charging the murder which is charged in this indictment on the first count, and the other charging the murder which is charged in this indictment on the second count. An entry should be made in those cases of nol prossed by reason of the verdict in this case. Now, congratulating the defendant and the counsel for the defendant on the result of the trial, I believe the duties are concluded.
Judge Mason—The jurors may be seated.
The clerk—Lizzie Andrew Borden. (The prisoner arose.) The court order that you be discharged of this indictment and go thereof without delay.
Judge Mason—The court desires to express to the jury its appreciation of their faithful service, and recognize its performance under conditions imposing great hardship upon the members of the jury. I trust it is not necessary to assure them that it is only in deference to the usages of the law and to what is deemed essential for the safety of rights that they have been subjected to the inconvenience in question. I trust that they will have the satisfaction of having faithfully performed an important duty as their compensation for this inconvenience. You are now discharged from any further attendance.
Thus ended, on the thirteenth day, the famous trial of Lizzie Andrew Borden, and she returned guiltless to her friends and home in Fall River.